10.131 As discussed in Chapter 2, the Terms of Reference to this Inquiry require the ALRC to consider the way in which secrecy laws interact with other laws and practices, including those relating to public interest disclosures, or ‘whistleblowing’.
10.132 There is currently limited protection at the Commonwealth level for people who make public interest disclosures. Section 16 of the Public Service Act provides very limited protections for an Australian Public Service (APS) employee who has reported breaches of the APS Code of Conduct to specified bodies. As noted in Chapter 2, this provision does not provide immunity from criminal liability under secrecy laws.
10.133 Some Commonwealth legislation contains protection for whistleblowers working in particular areas. For example, the Aged Care Act provides immunity from prosecution for a person who makes a disclosure (in accordance with the reporting framework in the Act) regarding the assault of a person in residential care. The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) provides certain persons with protection in relation to disclosure of information that reasonably indicates that there has been a contravention of the legislation. The protection provided includes immunity against ‘any civil or criminal liability for making the disclosure’.
10.134 As discussed in more detail in Chapter 2, the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Standing Committee) has recommended that the Australian Government introduce legislation—the Public Interest Disclosure Bill—to provide ‘whistleblower’ protections in the Australian Government public sector.
10.135 In summary, the Standing Committee recommended that a broad range of Australian Government officials be able to make public interest disclosures about ‘serious matters’ to their agency, or to designated external authorities such as the Commonwealth Ombudsman. A person who makes a public interest disclosure in accordance with the legislation would receive protection, including immunity from: criminal liability (including under secrecy offences); civil liability; and administrative sanctions.
10.136 In addition, the Standing Committee recommended that protection extend to a person who makes a disclosure to external third parties, for example, the media
where the matter has been disclosed internally and externally, and has not been acted on in a reasonable time having regard to the nature of the matter, and the matter threatens immediate serious harm to public health and safety.
10.137 The ALRC considers that it is important that public interest disclosure legislation cover the same people subject to secrecy offences. If not, there is a risk that a whistleblower would still be subject to prosecution for contravention of a secrecy offence.
10.138 In Chapter 7, the ALRC recommends that, in order to provide effective protection for whistleblowers, public interest disclosure legislation should cover the same categories of people subject to the general secrecy offence and the subsequent disclosure offence for the unauthorised disclosure of information received from a Commonwealth officer on terms requiring it to be held in confidence.
10.139 Specific secrecy offences, however, apply to a broad range of people, including Commonwealth officers, individuals providing services for or on behalf of the Commonwealth or engaged in federally funded or regulated areas of the private sector, and state, territory or local government employees. A significant number of specific secrecy offences apply to ‘any person’.
10.140 While the proposed public interest disclosure legislation will cover a broad range of Australian government officials, the Standing Committee did not recommend that the legislation cover ‘any person’. It may be possible to provide protection for some individuals by way of a deeming provision. The Standing Committee recommended that public interest disclosure legislation provide that a decision maker within the scheme be able to deem a person to be a public official for the purposes of the legislation, where that person has an ‘insider’s knowledge’ of matters that might form the basis of a public interest disclosure.
10.141 In the ALRC’s view, one consideration in making a decision whether to deem a person to be a ‘public official’ for the purposes of public interest disclosure legislation should be whether the person is subject to a secrecy offence. Alternatively, in some areas of government activity or regulation, it may be appropriate to establish public interest disclosure regimes targeted to the requirements of people working within that sector.
Recommendation 6–5 In developing public interest disclosure legislation the Australian Government should ensure that, where possible, the legislation protects individuals subject to specific secrecy offences.
 The operation of particular information-sharing arrangements, such as memorandums of understanding, interagency guidelines and legislative information-handling regimes are discussed in Ch 14.
 Ibid, Attachment 9, 22–25. See, eg, International Tax Agreements Act 1953 (Cth) s 23 which provides that disclosing information in accordance with the Commissioner’s obligations under an international agreement is not a breach of a secrecy provision in a taxation law.
 Criminal Code (Cth) s 10.5.
 The Terms of Reference are set out at the beginning of this Report.
 Aged Care Act 1997 (Cth) s 96-8.
 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) pt 10-5.
 Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 1.
 Ibid, Rec 3.
 Ibid, Rec 7.
 Ibid, Rec 14.
 Ibid, Rec 21.
 Recommendation 7–3.
 The range of parties regulated by specific secrecy offences is discussed in Ch 9.
 Australian Parliament—House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector (2009), Rec 5.