A new way to protect whistleblowers?

The Australian federal government is set to review corporate whistleblowing laws in 2017

New research has highlighted the gap between what happens in the real world with whistleblowers, and what the law says.

While about four in every five organisations in Australia and New Zealand have mechanisms to respond to anonymous whistleblowing, Australia’s Corporations Act protects only those whistleblowers who identify themselves.

It’s just one of the anomalies identified by the first phase of Whistling While They Work, the largest ever research project on whistleblowing. 

So far, 702 public and private sector and not-for-profit eligible organisations across Australia and New Zealand have participated in the research. Results show that 89 per cent of organisations have formal whistleblowing policies, while 90 per cent have processes to investigate wrongdoing concerns raised by staff.

Whistling While You Work is the largest research project on whistleblowing to be conducted to date, anywhere in the world. It involves five universities and is supported by 23 organisations, including CPA Australia. 

Launching its initial findings in Sydney earlier this month, project leader Professor A.J. Brown, from Griffith University’s Centre for Governance and Public Policy, says the research can deliver much of the hard evidence on which law reform can be based, and he hopes that reform will be significant and far reaching.

Around half the organisations surveyed say they do not assess the potentially detrimental impact that whistleblowing can have on the individual.

The disconnect between mechanisms for reporting and protection for those who do it, highlights a “massive inconsistency” between the law and the reality of how organisations are responding to whistleblowing, says Brown.

Australia’s federal government is set to review corporate whistleblowing laws in 2017 as part of its Open Government Partnership. While Brown sees this as a positive move, he hopes that the results of the research can have an influence on the process of law reform.

How to support the whistleblower?

Around half the organisations surveyed say they do not assess the potentially detrimental impact that whistleblowing can have on the individual, and only four in 10 provide whistleblowers with a management-designated support person.

Just 16 per cent of organisations have any mechanism for ensuring adequate compensation or restitution if whistleblowers experience reprisals or loss from bringing wrongdoing to light.

While the situation in public sector organisations is better, one in three private businesses and not-for-profits have no strategy, program or process for supporting and protecting staff who raise concerns about wrongdoing.

It points to a situation where organisations have addressed the issue of whistleblowing on a broad level, but have struggled to follow through with policies and practical processes to support individuals who come forward.

Brown sees several reasons why organisations are unable to respond to issues of restitution and support – the problem is systemic.

"Organisations are ready and willing to comply with whatever is required, but the issue is a lack of legal clarity", Professor A.J. Brown.

One reason is an issue with capacity: some organisations simply lack the resources and expertise to follow through. For others, the challenge is cultural, but what is lacking in culture can be made up for with compliance and capacity.

Ultimately, the solution lies in law reform. Organisations are ready and willing to comply with whatever is required, but the issue is a lack of legal clarity, says Brown.

At the Sydney launch, Brown was asked about US-style “bounties”, or rewards for whistleblowers. Would these solve issues around restitution and support, encouraging more staff to come forward? Or would it create a “dobbing culture” where some people could be motivated more by financial reward than the ethics of reporting wrongdoing?

Brown said that while bounties are not a “silver bullet”, he is certainly not ruling them out.

Providing evidence for law reform on whistleblowing

Whistling While They Work is about to move into the second stage that will drill down further into the participating organisations, surveying employees and managers.

Any Australian or New Zealand organisation with more than 10 employees is welcome to participate as the project looks to widen its sample.

This second phase, which Brown says is the most exciting and meaningful part of the research, should be even more useful to governments as they tackle reform. 

While not being prescriptive, he is already warning against reform based around harmonising provisions for public and private sector disclosures. 

Harmonisation for its own sake is not, he suggests, a good principle on which to base reform of the law. The process should instead be one where the law recognised different operating environments and cultures, and legislated accordingly.

But all this is still on the table, and such outcomes should be shaped by the next phase of research.

Whistling While They Work 2 involves Griffith University, the Australian National University, University of Sydney, and Victoria University of Wellington. The project is supported by the Australian Research Council and 23 partners including CPA Australia, the Australian Securities and Investments Commission, Transparency International Australia, and the leading public integrity agencies of all Australian and NZ jurisdictions.

Read next: How can Australia set the standard for managing whistleblowing?

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December 2020
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