Definition of Whistleblowing

There are two aspects to this definition. They are:

(a) legislative; and
(b) the type of whistleblowing.

The Legislative Aspect

The whistleblower needs to visit the current legislation pertaining to making public interest disclosures (PID) in the circumstances of the whistleblower, so as to determine whether or not the disclosure made is a public interest disclosure under applicable law.

The applicable law can be State or Federal law, or possibly both. For example, where a state government body may allegedly be acting in breach of a Federal law.

For the disclosure to be a PID under applicable law, and thus gain any purported protections under the legislation, the whistleblower may need to check the following:

1. The whistleblower is a category of person who is able to make a PID under the applicable law. Where the law ostensibly pertains to public servants, there may be provisions in the legislation allowing contractors, apprentices or trainees, casuals and/or other categories of non-public servants to make PIDs.
2. The disclosure is about a category of wrongdoing that constitutes a public interest disclosure under applicable law. Where the law ostensibly pertains to public sector entities, disclosures of criminal acts, official misconduct and maladministration (as defined by other legislation) may constitute a PID, but some levels of grievance or complaint, and acts or omissions occurring away from the workplace, may not be a form of wrongdoing that can be made the subject of a PID.
3. The disclosure is about the actions or omissions by an entity to which the PID legislation applies. Where the law ostensibly pertains to public sector entities, clarity is required where, for example, contractors are performing public sector functions, or government corporations have been established to conduct what formerly was a role for a public service department. In some circumstances, members of the public may be able to make a PID under applicable law.
4. The disclosure is made to an authority or other entity to which a PID can be made under applicable law. Where the law ostensibly pertains to public servants, the legislation can provide a schedule as to the positions within agencies to whom PIDs need to be addressed. The Agency can also have its own Whistleblowing Guideline that sets out to whom PIDs need to be made within the Agency.

WARNING: These considerations are best made before any PID is undertaken.

In the absence of legislation protecting most persons who make disclosures about wrongdoing in the private sector and Not-For-Profit sector, entities from these backgrounds still need to manage such disclosures. Corporations, companies, firms, businesses and organisations manage whistleblowing through the use of internal policies and procedures.

Such entities are assisted in developing such internal policies and procedures by an Australian Standard AS8004-2003 on Whistleblower Protection Programs for Entities. This standard, if followed by an entity, defines, for the whistleblower in the private and Not-For-Profit sectors, the answers on defining whistleblowing that the legislation defines for the public servant.

The Type of Whistleblowing

This is important for the development of strategy, policy, procedure and legislation designed to address whistleblowing, or to address the making of a PID, including the encouragement of whistleblowers and their protection. Identifying the type of whistleblowing is also important for the conduct of research programs into whistleblowing.

Three sets of whistleblowing ‘types’ are:

• Dissent vs ‘Dobbing’ whistleblowing;
• Whistleblowing with respect to Systemic wrongdoing, versus whistleblowing with respect to Ad hoc wrongdoing; and
• Whistleblowing with respect to the Seriousness of the Alleged Wrongdoing.

Dissent vs ‘Dobbing’ Whistleblowers. Dissent whistleblowing refers to making PIDs about the actions of superiors in the workplace or about the organisation or industry in which the whistleblower holds employment or membership. The ‘Dobbing’ type of whistleblowing – to use that derogatory term just for the purpose of differentiation, not approval – occurs where the wrongdoing disclosed to superiors is about the actions of colleagues or fellow workers.

Systemic vs Ad hoc Wrongdoing. Blowing the whistle in situations where the wrongdoing is systemic, may be characterised by the chiefs of the organisation or industry being suspected of:

1. involvement in the wrongdoing;
2. being passively or actively engaged in covering up the wrongdoing;
3. having captured or neutered the watchdog regulator(s).

Consequently, Systemic Wrongdoing is a situation for the whistleblowing strategy, policy, procedure and legislation that is greatly different to wrongdoing by a small group, or by an individual, occurring on an ad hoc basis within the same organisation.  An organisation that is the subject of systemic corruption cannot be trusted to ensure the safety of its whistleblowers. A jurisdiction that requires its whistleblowers to trust their organisations or institutions or watchdog regulators, in a situation of systemic corruption, is a jurisdiction that may have been designed to fail its whistleblowers, so as to cover-up the serious level of systemic wrongdoing that may have developed under the management of those organisations, those institutions and / or those watchdog regulators.

Seriousness of the Alleged Wrongdoing.  There is also a great difference where the wrongdoing is the cause of waste through inefficiency or maladministration, versus more serious conduct from which loss, injury or improper advantage may be occurring through abuse of an office and or through criminal conduct. In other words, conduct which is criminal or an abuse of office, because of its dishonest and partisan character, is more serious as a cause or wrongdoing than incompetence and or inefficiency.

Combinations of Types of Whistleblowing.   Different situations fitting into different combinations of the above types of whistleblowing pose a spectrum of challenges for the administration of whistleblowing programs and research studies.

Case Study. The ‘Whistle While They Work’ study [WWTW] steered by the watchdog regulators of Australia (e.g. Ombudsman Offices, Crime Commissions) assumed that the watchdog authorities were doing a good job, and that relevant agencies were well intentioned with respect to the treatment of whistleblowers. That is, there was no systemic wrongdoing, and valid dissent whistleblowing was not expected. Working from such a premise, the WWTW did not test the validity of these assumptions about whistleblowing in the scope of the survey based research used by WWTW in reaching its conclusions. The survey results, however, showed that 76% of PIDs were made against superiors, not against colleagues, and 71% of employees had seen wrongdoing in the last two years (61% had seen serious wrongdoing), not 29%. It is therefore obviously open to suggest that these results from the WWTW’s own surveys may indicate that the intentions of agencies and the performance of watchdog regulators should also have been studied, and not assumed, as part of that research. The WWTW also used the nature of the business where wrongdoing was disclosed, rather than the nature of the wrongdoing in that business activity, in order to test for any cause and effect relationships. Thus the WWTW looked at wrongdoing with respect to information within an agency. This meant that a lesser number of incidents of destruction of information requested by parties for court litigation (i.e. always a potential serious criminal offence against the administration of justice) was mixed in with and diluted by the greater number of incidents of misrepresentations in agency advertising and media releases (minor maladministration). Information then on the relationships between whistleblowing outcomes and the seriousness of the wrongdoing disclosed by the whistleblower could not be gained from such mixtures of the survey data.

There are other aspects to defining whistleblowing, such as:

• Whistleblowing internally versus disclosing to external parties;
• Whistleblowing to authorities versus whistleblowing using the media or social media; and,
• Whistleblowing openly versus being an anonymous whistleblower.