Whistle Blower Act and Witness Protection
Schemes: Pitfalls and Best Practices
- An Australian Perspective
John McFarlane
Adjunct Fellow
Strategic and Defence Studies Centre, and
ARC Centre of Excellence in Policing and Security
Australian National University
1
Acknowledgements
The major part of this presentation
is based on contemporary research
work undertaken under the
leadership of Dr A J Brown, John F
Kearney Professor of Public Law,
at Griffith University, Gold Coast
Campus, Queensland. Professor
Brown is supported by a number of
outstanding academics from
Melbourne University and other
Australian and overseas
universities, as well as a number of
industry partners.
Six Australian
Universities
and 14
Industry
Partners
Whistling While They Work (2005 – 2011)
[Funded by the Australian Research Council]
Objectives
1. Management and protection of internal witnesses, including
whistleblowers, in the Australian public sector
2. Identify and promote current best practice in workplace responses to
public interest whistleblowing, using first- and second-level
managers to identify strategies to prevent, reduce and address
reprisals and other whistleblowing-related conflicts.
Research Questions
1.Incidence and significance of public sector whistleblowing?
2.Experiences of public sector whistleblowers?
3.Incidence, nature and influence of internal witness management/
whistleblower protection programs in the public sector?
Six Australian
Universities
and 14
Industry
Partners
Whistling While They Work (2005 – 2011)
[Funded by the Australian Research Council]
Wrongdoing Categories and Types
[based on employee survey, internal witness survey and case-handler
and manager surveys]
1.
2.
3.
4.
5.
6.
7.
8.
Misconduct for material gain
Conflict of interest
Improper or unprofessional behaviour
Defective administration
Waste or mismanagement of resources
Perverting justice or accountability
Personnel or workplace grievances
Reprisals against whistleblowers
Six Australian
Universities
and 14
Industry
Partners
Whistling While They Work (2005 – 2011)
[Funded by the Australian Research Council]
Key Findings: An Agenda for Action
1. More comprehensive agency systems for recording and tracking
employee reports of wrongdoing
2. Agency procedures for assessing and monitoring the risk of reprisals
(or other conflict) for those who report
3. Clearer and better advice for employees on the range of avenues
available for reporting wrongdoing
4. Basis training for public sector managers in hoe to recognise and
respond to possible public interest disclosures
5. A program of training for internal investigators in basic techniques,
with special attention to issues of internal witness management
Six Australian
Universities
and 14
Industry
Partners
Whistling While They Work (2005 – 2011)
[Funded by the Australian Research Council]
Key Findings: An Agenda for Action
6. Adoption and expansion of structured support programs for
employees who report wrongdoing
7. Improved mechanisms for monitoring the welfare of employees who
report wrongdoing, from the point of first report
8. More detailed and flexible agency procedures for the investigation
and remediation of reprisals and breaches of duty of care
9. A dedicated oversight agency or unit for the coordination of
responses to employee-related wrongdoing
10.Legislative action to provide more effective organisational systems
and realistic compensation mechanisms and to recognise public
whistleblowing
Six Australian
Universities
and 14
Industry
Partners
Whistling While They Work (2005 – 2011)
[Funded by the Australian Research Council]
Future Research
1. Further detailed research on how agencies are handling whistleblower
matters, including reporting, inaction and mistreatment rates
2. Tracking of the life and career outcomes of a cross-section of public
interest whistleblowers
3. Further research into options for practical internal witness support and
management intervention
4. Study of the handling of reprisal allegations in whistleblowing cases, and
how to best handle and resolve such complex cases
5. Study of forms of compensation available to employees who suffer adverse
outcomes from reporting – positive actions taken by agencies to extend the
justice, legal and management frameworks in the workplace
6. More detailed analysis of the training needs of agencies
World Online Whistleblowing Survey
[Part of a three year Australian Research
Council research project]
Objectives
1.Attitudes to the value of whistleblowing
2.Impact of new technologies and social media on whistleblowing
3.Differences in attitudes to whistleblowing in different contexts
4.Citizens’ propensity to ‘blow the whistle” on wrongdoing
5.Citizen preferences regarding how to blow the whistle on wrongdoing,
including issues of anonymity, communication and trust with the media
Who can answer the survey?
1.Anyone, anywhere in the world, provided they do so only once
2.As many people as possible – the survey is not just for whistleblowers
3.The survey is offered in a number of languages
4.Can be downloaded from https://whistleblowingsurvey.org
World Online Whistleblowing Survey
[Stage 1 Results, 06Jun12]
Initial Findings
1. Online survey of 1,211 Australians aged 18-64 undertaken 03-06May12
2. Half of all Australians (50%) surveyed believe too much information is kept
secret in organisations in our society. About 26% thought about the right
amount of information is kept secret; 7% felt that not enough information is
kept secret; and 18% could not say.
3. 81% of adult Australians believe whistleblowers should be supported for
revealing serious wrongdoing in an organisation, rather than being punished for
revealing information.
4. A large majority (82%) consider it fairly or highly acceptable for someone to
blow the whistle on people in charge of an organisation, with reduced
majorities considering it acceptable to reveal wrongdoing by other staff or
workers (77%) or by a family member or friend (60%)
5. Of the 66% of respondents who identified as an employee or organisation
member, 80% indicated that if they observed wrongdoing, they would feel
personally obliged to report it to someone in the organisation.
6. Many people (56%) thought the most effective way to stop serious wrongdoing
in Australian society is to report it to people in authority, via official channels
World Online Whistleblowing Survey
[Stage 1 Results, 06Jun12]
Initial Findings
However, a very large majority (87%) still believe that whistleblowers should also be
able to use the media to draw attention to wrongdoing – whether as a first option or
when the need arises (41%), or as a last resort (46%)
8. While confirming that issues of personal loyalty and institutional trust matter to
respondents, these results challenge assumptions that Australia is an “anti-dobbing”
society, such as to have an overall culture that is hostile to whistleblowing.
9. The results tend to indicate that most Australians rely on whistleblowing, including to
the media, as an important integrity measure for organisations in society
10. There is a large gap between citizens’ personal values and expectations, and the current
Australian social, organisational and legal standards towards whistleblowing, as
perceived by respondents:
7.

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Despite strong support for whistleblowing, only 53% of adults see it as
“generally acceptable” in Australian society for people to speak up about serious
wrongdoing if it means revealing inside information
Only 55% of employees or organisational members are confident that something
appropriate would be done about wrongdoing if they reported it
Only half (49%) of employees or organisational members polled see their
management as serious about protecting people who report wrongdoing
Labaton Sucharow’s* 2nd Annual Integrity Survey of
the American Public:
2012 Ethics and Action Survey: Voices Carry
[http://www.secwhistlebloweradvocate.com] [17Sep12]
Ten Top Findings
• 54%
of Americans have personally observed or have first-hand knowledge of wrongdoing in the
workplace;
• 18% of Americans believe that their employer values bottom line profits more than ethical
conduct;
• 64% of Americans polled believe that corporate misconduct was a significant factor in bringing
about the current economic crisis;
• 81% of Americans do not believe the government has done enough to stop corporate wrongdoing;
• 77% of Americans believe politicians favor corporate interests over their constituents’ interests;
• 61% of Americans will significantly factor a candidate’s commitment to rooting out corporate
wrongdoing in their voting decision in November;
• 63% of Americans believe government should allocate more dollars to financial regulators and
law enforcement to combat corporate wrongdoing;
• 84% of Americans have a positive perception of whistleblowers that report illegal or unethical
conduct;
• 24% of Americans would fear retaliation if they reported wrongdoing in the workplace and 20%
believe that any report of wrongdoing would not be appropriately handled by their employer; and
• 83% of Americans would report wrongdoing with protections and incentives such as those
offered by the SEC Whistleblower Program, but only 28% are aware of the new investor
protection program.
* Labaton Sucharow is a New York-based legal practice exclusively focused on protecting and advocating for whistleblowers who
report possible violations of the (US) federal securities laws.
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Securency and Note Printing Australia manufacture polymer banknotes.
Allegations of widespread bribery and corruption at Securency and Note Printing
Australia, both Reserve Bank of Australia (RBA) subsidiaries. Investigated by the
AFP. Information from a whistleblower, who was subsequently “encouraged” to
resign. Seven former employees charged. Role of senior officials in the RBA also
under review.
ABC Four Corners (24May10) claims Securency paid about Aus$50 million since
2003 in commissions to “shady foreign businessmen” who bribed central banking
officials in Asia, Latin America and Africa to replace their paper banknotes with
Securency’s polymer banknotes.
Countries targeted included Indonesia, Nigeria, Malaysia, Vietnam, and Paraguay
First conviction (SFO Securency) 18Jul12. The defendant will now give evidence
against others defendants. Case now being heard in Federal Court, Melbourne.
Was the Board of the RBA aware of this behaviour? If so, why did they not refer
the matter to the AFP for investigation until after it attracted publicity?
Under Australian corporations law, a company can be held liable for the actions of its
employees and agents if it can be shown that its culture directed, encouraged or led to
corrupt conduct.
These actions appear, prima facie, to transgress Australia’s obligations as a states party
to the OECD Convention on Combating Bribery of Foreign Public Officials, 1999.
Australia’s Witness Protection Program
• National Witness Protection Program (NWPP) operates under the
Witness Protection Act, 1994 (Cth) and maintained by the Australian
Federal Police
• Applies, in circumstances of threat or possible retribution, to:
o
o
o
o
o
Persons giving evidence for the Crown in criminal or proscribed cases
Persons who have given or agreed to give evidence in criminal cases
Persons who have made a statement in relation to an offence
Persons who may require protection or assistance for any other reason*
Persons who are related to or associated with such persons
• NWPP employs operating methods designed to ensure the safe
integration of witnesses and their families in the community
• The Act contains regulatory mechanisms for maintaining the
integrity of the NWPP
• Commissioner/AFP cooperates with State and Territory CoPs and
CEO/Australian Crime Commission on the NWPP, and foreign
LEA’s or the International Criminal Court, if requested
* This category obviously includes whistleblowers
Australia’s Current Anti-Corruption Situation
[Commonwealth Jurisdiction]
Conventions
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OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, 1999 [Ratified by Australia in 1999]
UN Convention Against Corruption, 2003 [Ratified by Australia in 2005]
Australia (Cth) Criminal Code, 1995
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Extra-territorial reach of Code in limited circumstances
Code prohibit bribery/corruption of foreign public officials
Facilitation payments permitted
Limited criminal/civil fines, imprisonment and disgorgement of profits or turnover
Whistleblower Legislation
•
Public Interest Disclosure Bill has been under preparation for some five years! [The
Commonwealth record on whistleblower protection leaves something to be desired.]
Witness Protection Legislation
•
Witness Protection Act 1994 (Cth)
Anti-Corruption Bodies
• Australian Commission for Law Enforcement Integrity, 2007 (for Federal LEAs)
• Commonwealth ICAC-type body (not under consideration as yet)
Other Initiatives
• National Anti-Corruption Plan under preparation (under our G20 obligations)