Tue Feb 13

Australia is in desperate need of a Whistleblower Protection Authority. Here’s what it should look like

Written by A J Brown, Professor of Public Policy & Law, Centre for Governance & Public Policy, Griffith University

Making it safer for insiders to speak up about wrongdoing is crucial for public integrity in Australia. Ask anyone, from the public servants who tried to speak up against Robodebt ^[1], to Attorney-General Mark Dreyfus ^[2], again at the front end of whistleblower protection reforms.

But what it will take to make reform a reality has long been the issue. This is particularly salient as the federal government consults on how to better protect whistleblowers in the public sector ^[3], including contractors. In addition, reviews are underway or looming for other whistleblower protections in the Corporations Act ^[4], Taxation Administration Act ^[5], and the aged care sector ^[6], to name a few.

Naturally, the key to improved protections is making them work. This is why many years of research support the need for a dedicated Whistleblower Protection Authority to fully enforce our “speak up” laws, irrespective of what improved protections they contain.

Together with Transparency International Australia and the Human Rights Law Centre, we have released draft design principles ^[8] for a Whistleblower Protection Authority, informed by our research ^[9] and the experience of many who have blown the whistle.

Here are our five key recommendations for this crucial reform.

1. The agency must actually protect whistleblowers

The first priority is to fill the gaps in what institutions currently do to implement whistleblower protections, given these types of laws have already been around for years.

Several federal bodies have the task of fighting wrongdoing and ensuring integrity, including the new National Anti-Corruption Commission (NACC)^[10].

Yet, drawing on international research, we found when it comes to the crunch, out of 15 key official functions required to make whistleblowing laws work, only four of those were currently fully provided for. This leaves substantial or total gaps for the remaining 11.

Of these weak or missing roles, the most important are powers to independently investigate claims of detriment or vengeful harm to whistleblowers, and to ensure remedies are found. This massive and obvious gap lies at the heart of the need for institutional reform.

Author supplied, Author provided (no reuse) 2. Capture the financial benefits of whistleblowing What does effective protection look like? Our research found that even in deserving cases, more than half (56%) of public-interest whistleblowers are suffering serious direct or indirect repercussions. In turn, only about half (49%) of these are receiving any remedies to address the impacts – with less than 6% receiving any compensation. This is despite the huge benefits whistleblowers bring to government and taxpayers by uncovering wrongdoing, including financial benefits through penalties imposed, court settlements or money saved. A whistleblowing agency needs full resources to support whistleblowers in compensation claims, provide legal assistance, and mediate with agencies to secure remedies. A Whistleblower Protection Authority could also administer a reward scheme where a proportion of the penalties, savings or income gained by the Commonwealth from whistleblower disclosures is channelled back into compensation. Whistleblower reward schemes ^[11] in other countries have had great success, which is especially relevant for protections that also apply across the private sector. This was highlighted last week ^[12] by former Australian Competition and Consumer Chair Allan Fels. 3. Protect whistleblowers across all sectors Whistleblowers don’t just exist in the public sector. And even when it comes to revealing public sector wrongdoing, many whistleblowers are located in private companies that deliver government contracts. They can also be consultants, or witness wrongdoing involving other companies, even if not their own, and can still face detriment. This is why a major 2017 parliamentary inquiry ^[13] recommended consistent whistleblower protections across the sectors under federal laws, including a “one stop shop Whistleblower Protection Authority”. International standards support a consistent, seamless approach, so whistleblowers do not fall through the cracks or face extra costs and barriers due to differences in rules and enforcement. Our research ^[14] shows great similarities in how reports of wrongdoing are handled between the sectors. With most federal whistleblowing laws up for review, it’s the perfect time to move to a simpler approach, with an authority able to ensure public interest whistleblowers are protected irrespective of where they come from. 4. Ensure agencies respond properly to whistleblowers We can only be sure that whistleblowers are being protected – and their disclosures dealt with – if they are on the radar of their own organisation, with an independent agency there to make sure that’s the case. Our best guess is that perhaps only 10% of actual Commonwealth whistleblowers are being identified as such under the current public interest disclosure regime. Upwards of 1,200 public officials who need support and protection every year are not even on the radar. Under-reporting is a problem everywhere. But every year, NSW government agencies identify four times as many whistleblowing disclosures as the federal government (on a pro rata basis), while the Queensland government reports seven times as many. This confirms the federal regime is broken. Robodebt is a good example. Several staff raised concerns about the unlawful and unfair nature of the scheme, as aired in the royal commission ^[15]. They have rightly been praised ^[16] as “whistleblowers” by the Minister for Government Services Bill Shorten, but none seems to have triggered the necessary responses and legal protections. A Whistleblower Protection Authority will close these gaps by checking how well agencies are recognising disclosures and being an independent doorway where whistleblowers can go confidentially for guidance and support. 5. An independent, standalone body A Whistleblower Protection Authority could be located in various places in our system. For example, independent MPs Cathy McGowan and Helen Haines have previously put forward legislation that included a new whistleblower protection commissioner as part of the NACC. The crucial thing is for whistleblower protection to be recognised as a standalone job. It must have an independent statutory commissioner supported by adequate resources and staff, who cannot be diverted onto other jobs. The authority will still need to work in close partnership with other agencies, especially those that already investigate whistleblowing disclosures. However, independence is crucial, so the authority can act impartially to conciliate disputes between whistleblowers and organisations, investigate when whistleblowers allege detriment for raising their concerns, and act as a powerful circuit breaker against reprisals. For example, we recommend any federal agency who proposes taking legal action against a whistleblower – such as in the ongoing prosecutions of Richard Boyle ^[17] by the Australian Taxation Office, or David McBride ^[18] by Defence – must first prove to the authority that the action is justified. It’s time to get the design of this crucial body right. It’s not enough for workers and officials, who serve us every day by raising their concerns, just to have protections on paper. We need an authority that will finally ensure these protections work fully, in practice.

References

^{^} speak up against Robodebt (www.theguardian.com)
^{^} Attorney-General Mark Dreyfus (ministers.ag.gov.au)
^{^} whistleblowers in the public sector (consultations.ag.gov.au)
^{^} Corporations Act (asic.gov.au)
^{^} Taxation Administration Act (treasury.gov.au)
^{^} aged care sector (www.health.gov.au)
^{^} How and why Australian whistleblowing laws need an overhaul: new report (theconversation.com)
^{^} draft design principles (transparency.org.au)
^{^} our research (www.griffith.edu.au)
^{^} Anti-Corruption Commission (NACC) (theconversation.com)
^{^} reward schemes (bettermarkets.org)
^{^} highlighted last week (www.theguardian.com)
^{^} major 2017 parliamentary inquiry (www.aph.gov.au)
^{^} Our research (www.whistlingwhiletheywork.edu.au)
^{^} as aired in the royal commission (robodebt.royalcommission.gov.au)
^{^} been praised (ministers.dss.gov.au)
^{^} Richard Boyle (www.abc.net.au)
^{^} David McBride (theconversation.com)

Australia is in desperate need of a Whistleblower Protection Authority. Here’s what it should look like

1. The agency must actually protect whistleblowers

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