Insights & Recommendations

Despite clear evidence of retaliation against whistleblowers by government agencies, there appears to be few, if any, prosecutions of officers for reprisals against whistleblowers. This must lead to the inevitable conclusion that the legislative Shield has and is failing.

QWAG offers the following insights about whistleblowing and corruption in the public, private and NFP sectors, with recommendations for the provisions of whistleblower protection that will assist the legislation to be more effective.

Firstly, as stated above, the critical enabler, necessary for success in fighting corruption in all sectors, is that the whistleblower survives. If the whistleblower survives, then the disclosures of wrongdoing, too, survive. The survival of those disclosures, assisted by any accumulation of such disclosures from other whistleblowers, applies the pressure to the watchdog authorities and the police, agencies and CEOs, auditors and boards, professional bodies and unions, courts and judicial inquiries, to respond to the disclosures. At present, those bodies, proactively or by omission, on too many occasions, have set out to destroy the whistleblower or allow the processes of destruction to continue without inspection.

The purpose of ensuring that the whistleblower survives will be well served by Separation of the Shield function (that is, protecting whistleblowers) from the Sword function (that is, investigating the disclosures of alleged wrongdoing). A separated Whistleblower Protection Body reporting directly to the government is recommended.

The Australian Federal jurisdiction has good experience in the operations of such a body and of such a separation of Sword and Shield functions. New provisions should incorporate lessons to be learned from that experience.

QWAG is proud of the part that it played with the ACTU and other stakeholders in the establishment of the Employment Protection Office for Defence Reservists. A lesson learned here, from the statements made to the Parliament by the then Assistant Defence Minister Arch Bevis, and from the experience of whistleblowers whose cases went before this Office and various Defence Committees, was that, strangely enough, Defence bodies were not interested in supporting applications for assistance and may have even been acting against the applications by its Defence Reservists for assistance.

I also have a concern that those powers for the remedy contained in the bill will not be used in any event. I have some experience with this. When I was Parliamentary Secretary to the Minister for Defence, I had a case of a reservist who claimed that he had been disadvantaged in his employment because of his reserve service. He had evidence that satisfied me that it was a case worth pursuing. I can tell the House that the department put every conceivable obstacle they could findin the way to that matter ever being taken on. There was every reason advanced as to why they did not want to do it.I am yet to be convinced that the view that I saw and laboured with for months is any different today than it was then.

[Arch Bevis MP
Defence Reserve Service Protection Bill 2000 Second Reading
House Hansard, 29-11-2000, page 20194]

The Defence Force appeared to prefer the perception that Defence Service had strong employer support, even where the realities were that this was not always the case.

QWAG is also proud of the contribution it made to debates on whistleblower protection during past processes undertaken by the Federal Parliament, which separated the Shield function, at least in part, from the Ombudsman and Public Service authorities, and gave whistleblowers an avenue for complaint through the Fair Work Commission. Lessons, too, have been learned from the experience of whistleblowers with the Fair Work Commission (FWC). The FWC also have appeared reluctant to assist whistleblowers who come to the FWC, if not determined to frustrate the attempt by whistleblowers to obtain protection. For example, the FWC have claimed that only a Court can determine if a whistleblower has made a disclosure, or that only a Court can determine if a person is a whistleblower and merits whistleblower protection. The notion incorporated into the Federal legislation that a disclosure requires only a report of information tending to show that wrongdoing may have occurred (or other equivalent definition based upon the notion of a ‘reasonable suspicion’) has been ignored by the FWC. The FWC notion that it takes a Court decision upon the disclosure to determine whether or not the whistleblower has made a disclosure and then is eligible for protection defeats the intended scheme for protection – if the Shield function is not operated until the Sword function is completed, the whistleblower will not have survived, and the Sword function will likely not have been pursued.

The reputation of the FWC lies with the matters learned during multiple inquiries into events within the trade union movement. The Shield function should not be given to an organisation that may already be ineffective in its existing roles, if not captured by other purposes

A Whistleblower Protection Body needs to be separated from the Sword bodies, and separated from public service agencies and commissions. It needs to report direct to Parliament which currently appears to be the only authority wherein there resides stakeholders still interested in combating corruption, and thus see the critical role that whistleblowers have in identifying corruption in the public service, in the corporate world, and in NFPs.

Secondly, the whistleblower who has established a reasonable suspicion that wrongdoing may have occurred from the documents provided nearly always need legal assistance to ensure any protections afforded him or her by the legislation are put into effect.

Again, the Federal jurisdiction has experience with such schemes. QWAG again is proud of the part that it played with the ACTU in obtaining a right to legal assistance for Defence Reservists who disclosed disadvantages in their employment, be it in the public, private of NFP sectors, because of their Defence Service. Again, lessons need to be learned from the performance of the Employment Protection office of the Australian Defence Force.

In particular, the threshold for obtaining approval for legal assistance needs to be well defined and actionable at speed, so as to be able to match the speed with which actions can be taken against whistleblowers. A Whistleblower Protection Body could operate such a scheme, authorised by any management action taken by the agency or firm or NFP within a set period from the date that the disclosure has been made. A Whistleblower Protection Body could function to establish for all parties that Disclosure date, particularly if the whistleblower made the disclosure through the Whistleblower Protection Body. The set period used in US jurisdictions has varied from 6 months to 1 year – QWAG recommends that one year be adopted in the proposed legislation.

An important opportunity should be taken by the whistleblower protection legislation to impose, upon the budget of the agency, firm or NFP at issue, the costs of actions taken by the Whistleblower Protection Body, and the costs of whistleblowers who have achieved the threshold for legal assistance. This will be a strong incentive for the agency, firm or NFP, to withdraw from options threatening the survival of the whistleblower, and advance instead towards the option of correcting all wrongdoing.

Thirdly, the provisions of the legislation needs to make specific reference to the illegality of specific tricks used commonly by watchdog authorities, by agencies, firms and NFPs. An example of such a provision was given in the Queensland Public Service Act 1996 [sub section 99(1)] which required that appeals heard by the PSC watchdog be the appeals actually lodged (and it follows, not an appeal against a matter not lodged and thus not likely to be upheld). This tactic and several others identified in this submission are rife within the behaviour of Federal and State agencies, and a Federal provision will set the standard for other jurisdictions, to match, including any revision of the Australian Standard on Whistleblower Protection within Entities.

Fourthly, as a special case from the last mentioned case, the Whistleblower Protection Body needs to be authorised to challenge before a Court and provide legal assistance to a whistleblower wherever an appointment is made to hear an application by a whistleblower or another party to the disclosure, which appointment raises a reasonable perception of a conflict of interest.

Fifthly, the relations between the media and whistleblowers may merit provisions in the legislation. Overall, whistleblowers benefit from media, though, like other parts of the community, whistleblowers can suffer from poor reporting, including sensationalism and factual error. Whistleblowers can be targeted by media who adopt political agenda that the disclosures by whistleblowers undermine, but QWAG has been unable to devise methods for dealing with this by legislation that would not also threaten the liberty of a conscientious journalist or news program. QWAG can only denounce instances as they arise, such as has occurred with the campaign by a part of the media against the disclosures of Kevin Lindeberg. Where legislation will assist is when whistleblowers are forced into making disclosures to the media – legislation should enable journalists to withhold their sources from the Courts, else the Courts become a pathway to identifying whistleblowers thereby enabling reprisals against whistleblowers.

A sixth matter involves new forms of alleged reprisal. These include:

1. Disciplinary action against professionals subject to registration. This may now be extended to participants in Court action and judicial inquiries, where the professionals may be expert witnesses or lawyers representing whistleblowers. It may be expected that these persons in these roles may be protected by privilege. The legal argument by the executive arm of government may be that disciplinary action by a professional body registered under legislation is not a civil action or criminal action, that privilege only provides protection against civil and criminal action, and that thus these professionals are not protected by privilege from discipline by a statutory regulatory body.
2. Adopting procedures of the executive arm of government allegedly to dismiss allegations against a member of the judiciary, where the law directed by the constitution may have required that Parliament deal with such allegations.
3. Threats of contempt made by judicial inquiries. In one case, the judicial inquiry produced an interim report that claimed that allegations of a particular nature had not been made by any submission. The whistleblower disclosed to the commission of inquiry that their submission had made those allegations and that the Inquiry’s report was wrong in that respect. The Commission of Inquiry wrote to the whistleblower warning the whistleblower that the whistleblower could be held in contempt, and requiring the whistleblower to rephrase that disclosure. Subsequently, the Inquiry, because of a campaign by the media on the same and other matters, withdrew the relevant section of the interim report.
4. Withdrawal of privilege pertaining to whistleblower submissions made to an Inquiry, by publishing the submission for several months, and then withdrawing the submission from publication and informing the whistleblower that the submission has no protection from civil action. A surprising allegation is that the Royal Commission into Institutional Responses to Child Sexual Abuse redacted material from submissions already published by the Royal Commission months earlier, and did this regarding matters related to the Heiner Affair. (The Heiner Affair centres on disclosures by Kevin Lindeberg of the destruction of documents from an Inquiry into events at the John Oxley Youth Detention Centre, including the pack rape of a child, when the Heiner documents were sought for legal proceedings).

A seventh point is to include in the legislation particular principals from case law, so as to reinforce the application of those principles in administrative processes as well as in the courts. As an example, Lord Denning’s statement[1] that ‘…Fraud unravels everything’ could be used to require a fresh investigation where fraud by an investigation conducted by an agency, firm or NFP is shown. Currently, these organisations can continue with the other decisions from the same completed investigation as though those other matters have not been stained by the investigation that engaged in fraud in some aspect of its processes.

An eighth point – a Whistleblower Protection Body could survey whistleblowers every three years to determine if the whistleblower protection system has provided reasonable protection and support. Other statistics and information, such as on tactics employed by agencies, firms and NFPs and on prosecutions, could also be reported. In the absence of evidence-based statistics derived by sound methodologies for which any limitations are defined, reported and adhered to, the conjectures and misleading interpretations of the whistleblower system may continue.

The final feature that QWAG offers are measures that either compensate or otherwise entitle whistleblowers to a proportion of the savings that the whistleblowers actions bring to the government, to corporations or NFPs, or to the public, or to damages:

1. With respect to the government, the legislation should copy the US False Claims legislation, allowing whistleblowers to claim a proportion of the savings or recoveries made by government as a result of the whistleblower’s disclosures.
2. With respect to non-government victims of corruption or systemic wrongdoing, the legislation should give an imprimatur to class actions and arrangements whereby whistleblowers can contract with class action funders to provide disclosures to class action funders in return for which the whistleblowers can claim a portion of the class action funders fees paid by the beneficiaries of the class action
3. With respect to purported ‘No Win No Fee’ deals established between individual whistleblowers and legal firms or lawyers, the legislation should set provisions that protect whistleblowers from turnarounds in those arrangements that can severely injure the whistleblower’s finances and / or the rights of the whistleblower to further legal action
4. With respect to settlement agreements between whistleblowers and their alleged reprisers, the legislation should set out the limits to which agreements can go in silencing the whistleblower from further disclosures

QWAG submits that:

1. Without whistleblower protection, whistleblowers, their livelihoods, reputations and enjoyment of their personal lives, may face serious threat – the whistleblowers are unlikely to survive
2. Without whistleblowers, such inquiries may face ineffectiveness and thus constitute a waste of public funds by a system that may lack interest in addressing these principal issues and any aspects of corruption or systemic wrongdoing that may be having an impact within those areas of government and enterprise

Without whistleblowers, any corruption or systemic wrongdoing that may exist in those areas of government and enterprise will be enabled to continue and develop, and will continue and develop.

[1] Lazarus Estate Ltd v Beasley [1956] 1 QB 702, [1956] 1 All ER 341