Australian Public Sector
Anti-Corruption Conference 2007
Whistleblowing in practice
Protections, procedures and
managerial responsibilities
Dr A J Brown
Professor of Public Law
Griffith Law School, Griffith University
Project leader, ‘Whistling While They Work’
Non-exec director, Transparency International Australia
Contents
 Introduction & legal landscape
 ‘A Problem’
 Recognising and encouraging
public interest disclosures
 Protecting & supporting
whistleblowers (and others)
 Management obligations
 More questions & discussion
Whistling While They Work: Enhancing the Theory & Practice of
Internal Witness Management in the Australian Public Sector
Australian Government
Commonwealth Ombudsman
Australian Public Service Commission
Charles Sturt University
Queensland Government
Crime & Misconduct Commission
Queensland Ombudsman
Office of Public Service, M&E
Griffith University
Transparency International Australia
Australian Research Council
Western Australian Government
Corruption & Crime Commission
WA Ombudsman
Public Sector Standards Commissioner
Edith Cowan University
New South Wales Government
NSW ICAC
NSW Ombudsman
University of Sydney
Victorian, ACT & NT Govts
Ombudsman Victoria
NT Comr for Public Employment
ACT Chief Minister’s Dept
Monash University
www.griffith.edu.au/whistleblowing
WWTW - Quantitative Research
General Agencies
Cth
73
56
27
Agency Survey (Procedures)
Procedures Assessment
Employee Survey
NSW
85
60
34
Qld
83
31
32
WA
63
28
25
304
175
118
Total no. of public servants surveyed – 23,177
Total responses – 7,663 (33%)
Case Study Agencies
Volunteered
Selected
Internal Witness Survey
Casehandlers (n=315)
Managers (n=513)
15
4
24
4
28
4
n=240
n=828
Integrity Agencies
Integrity Agency Survey (Practices & Procedures) n=16
Integrity Casehandler Survey
n=82
20
3
87
15
http://www.griffith.edu.au/whistleblowing
http://epress.anu.edu.au/whistleblowing_citation.html
Second report:
Whistling While They Work –
A good practice guide for managing internal reporting
of wrongdoing in public sector organisations
Peter Roberts, A. J. Brown &
Jane Olsen, 2011
http://epress.anu.edu.au/
whistling_citation.html
Elements of an organisational
whistleblowing program:
1.
Organisational commitment
2.
Encouragement of reporting
3.
Assessment and investigation of reports
4.
Internal witness support and protection
5.
An integrated organisational approach
What is whistleblowing?
“the disclosure by organisation members (former or current)
of illegal, immoral, or illegitimate practices under the control
of their employers, to persons or organisations that may be
able to effect action.”
Near & Miceli (1985: 4)
‘Public interest’ whistleblowing
As opposed to matters that are purely private,
personal, or industrial grievances
Reform of Australian whistleblowing legislation
Jurisdiction
Original
Reformed
Title
South Australia*
1993
Pending
Whistleblowers Protection Act
Queensland*
1994
2010
Public Interest Disclosure Act
ACT
1994
2012
Public Interest Disclosure Act
New South Wales
1994
2010
Public Interest Disclosure Act
Commonwealth
1999
Underway?
Victoria
2001
Pending?
Whistleblowers Protection Act
Tasmania
2002
2009
Public Interest Disclosures Act
Western Australia
2003
Pending?
Public Interest Disclosure Act
Private sector*
2004
Pending?
Corporations Act, Part 9.4AAA
NT
2008
--
Public Interest Disclosure Act
(Public Service Act, s.16)
* Private sector coverage
State of reform –
Australian whistleblowing legislation
Juris
Reform
Original
1. Effective system
& oversight
2. Public
disclosure
3. Effective
remedies
ACT
2012
1994
1
1
NKTW
NSW
2010-11
1994
1
3
NKTW
QLD*
2010
1994
2?
2
NKTW
WA
2012?
2003
2?
2?
NKTW
VIC
??
2001
2?
Missing
NKTW
TAS
2009
2002
2?
Missing
NKTW
NT
--
2008
?
Missing
NKTW
CTH
Waiting…
1999?
Proposed?
Proposed?
???
SA*
2012?
1993
Missing
NKTW
NKTW
Stalled?
2004
Missing
Missing
NKTW
Corps Act*
* Some private sector coverage
NKTW: Not known to work
What’s all this got to do with
New Zealand?
State of knowledge:
•Actual wrongdoing reporting rates?
•Actual support / management responses?
•Actual outcomes?
State of the regime / legislative framework
(Protected Disclosures Act 2000):
1. Operational –
- Comprehensive & tailored definitions of reportable wrongdoing?
- Low thresholds and multiple reporting paths?
- Disclosures recognised by management?
- Centrally monitored?
- Procedures & support requirements?
2. Public whistleblowing – not recognised.
3. Remedies –
- ‘May’ have an employment grievance?
- Victimisation complaints processes (Human Rights)
 ‘A Problem’:
Michelle, Peter & Alberto
1. Has Michelle done the right thing?
Has Peter?
Is whistleblowing a good thing?
Should it be encouraged?
Why?
Table 2.13. Relative importance of
employee reporting (means) p.45
Casehandler & Manager Q14, Integrity Casehandler Q9
How important do you believe each of the
following is for bringing to light
wrongdoing in or by your
organisation/public sector organisations?
(a)
Casehandlers
(n=285)
(b)
Managers
(n=410)
(c)
Integrity
Casehandlers
(n=70)
1=not important to 4=extremely important
a
Routine internal controls (e.g. normal
financial tracking, service monitoring)
3.24
3.24
3.26
b
Internal audits and reviews
3.19
3.06
3.27
c
Management observation
3.36
3.30
3.17
d
Client, public or contractor complaints
2.94
2.97
3.09
e
Reporting by employees
3.42
3.30
3.51
f
External investigations
2.66
2.59
2.94
g
Accidental discovery
2.45
2.37
2.36
Table 2.13. Relative importance of
employee reporting (means) p.45
Casehandler & Manager Q14, Integrity Casehandler Q9
How important do you believe each of the
following is for bringing to light
wrongdoing in or by your
organisation/public sector organisations?
(a)
Casehandlers
(n=285)
(b)
Managers
(n=410)
(c)
Integrity
Casehandlers
(n=70)
1=not important to 4=extremely important
a
Routine internal controls (e.g. normal
financial tracking, service monitoring)
3.24
3.24
3.26
b
Internal audits and reviews
3.19
3.06
3.27
c
Management observation
3.36
3.30
3.17
d
Client, public or contractor complaints
2.94
2.97
3.09
e
Reporting by employees
3.42
3.30
3.51
f
External investigations
2.66
2.59
2.94
g
Accidental discovery
2.45
2.37
2.36
Former Head of Forex, NAB, Luke Duffy arriving at court for his
committal hearing, 22 March 2005. Photo: Sydney Morning Herald.
Sentenced to 2.5 years jail (minimum 16 months), 15 June 2005.
NAB corporate affairs manager Robert Hadler has
confirmed the rogue trading was uncovered by
a whistleblower.
"The initial investigation was revealed by a colleague
on the trading desk in our trading floor in Melbourne,“
Mr Hadler said.
"He reported that to senior management; [a] thorough
investigation was launched and we worked out the full extent of
losses and have reported it immediately to the market, and to the
regulators and the police."
Despite being uncovered by a whistleblower, Mr Hadler says the
bank's systems would have detected it in due course.
"The trades were unauthorised and not properly recorded and
that's why they weren't picked up in the first instance by the
systems," he said.
-- ABC News Online, 14 January 2004.
How much
whistleblowing
goes on?
An overview of
whistleblowing in
the Australian public
sector
p.38
All respondents
n=7663
Saw wrongdoing (defined) in last two years?
No
29%
(n=2188)
Yes
71%
(n=5473)
Reported the most serious wrongdoing?
No
57%
(n=3125)
Yes
39% (n=2146)
(28% of all respondents)
Likely to have reported as part
of normal role?
Missing n=202
Yes
Wrongdoing only reported in their official
capacity, and/or manager only reporting
employees below level
29% (n=619)
Missing n=30
Yes
38% (n=549)
Australia (12%): 197,000
NZ core (12%): 4,337
Missing n=35
No
(potential whistleblowing)
70% (n=1497)
(20% of all respondents)
Wrongdoing was personnel or
workplace grievance?
No
(public interest whistleblowing)
61% (n=913)
(12% of all respondents)
Further
report(s)
Initial
report
None
51.3
Internal
97.1
External
2.9
50.1
38.1
7.1
1.7
1.2
0.9
0.5
0.3
Internal only
39.0
Mixed
7.6
Figure 4.1.
Reporting Paths
of Non-Role
Public Interest
Reporters (%)
Employee Survey, Q28
(n=858)
External only
2.1
‘Internal’ includes reports to one of the following: supervisors, senior managers, CEOs, internal ethical
standards units, internal audit or fraud units, internal ombudsmen or complaints units, human resource or
equity and merit units, internal hotlines and counsellors and peer support officers.
‘Internal only’ includes reports made only to one of more recipients in the ‘Internal’ category.
‘External’ includes reports to one of the following: external hotlines or counselling services, unions,
government watchdog agencies, members of parliament and journalists.
‘External only’ includes reports made only to one or more recipients in the ‘External’ category.
‘Mixed’ includes reports made to both ‘Internal’ and ‘External’ recipients.
Sample advice to
public employees
regarding reporting
points
Queensland
Government 2009
A Key Metric: How many don’t report?
% of respondents who observed very/extremely serious
wrongdoing
Figure 2.4. Inaction rates (very/extremely serious)
100
95
7.4
8.3
16.1
90
20.0
20.8
26.7
85
16.7
80
75
18.8
29.3
11.2
43.8
12.5
37.0
70
8.3
20.0
65
18.3
60
Mean
28.6%
nationally
17.4
55
50
14.1
45
40
75.0
35
30
72.7
60.0
51.9
25
66.7
68.8
55.0
52.2
Did not report, no action, no-one else reported
Did not report but dealt with by self / others reported
Report
Missing
20
15
10
42.2
5
0
B
H
F
C
G
D
Case study agencies
A
E
I
Fig 2.4
p.49
 Case study:
Michelle, Peter & Alberto
2. What impacts do the possible motives of
Michelle and/or Peter have on how any of
these issues need to be investigated?
 Why do employees report?
Triggers according to the WWTW data:
• Nature & seriousness of wrongdoing;
• Personal involvement / affected
(NB can also be history of conflict, dysfunctionality,
poor mgt, mixed motives);
• Ethical and/or legal responsibility;
• Confidence in protection not as high a priority for
reporters, but low confidence a big factor for nonreporters;
• Belief something will/must be done (the vital issue
for both reporters & non-reporters).
The diverse reality of whistleblowing...
• naïve whistleblowers - come forward without considering
there might be risks of reprisals or negative reactions;
• trusting whistleblowers – come forward anticipating there
are some risks but may underestimate them or assume that
dealing with them will be simple;
• risk managers - anticipate the risks more accurately and are
likely to already have higher coping skills, but are unlikely to
come forward unless confident of support;
• risk avoiders - over-estimate the risks, under-estimate the
solutions and are even less likely to come forward, but who
may end up pleasantly relieved if they do; and
• ‘kamikaze’ witnesses - proceed without regard for reprisal
risks. (Anderson 1996)
 Case study:
Michelle, Peter & Alberto
3. What are the issues that need to be
investigated, and how?
4. What are the main risks involved in what
Alberto decides to do next?
How should he address them?
 Case study:
Michelle, Peter & Alberto
5. Assume all allegations are true, and proven.
Are any options open to Alberto or
management to address the issues relating to
Michelle’s performance and travel claim?
If so, how, and what are the risks involved?
Figure 5.1. Treatment by management
and co-workers (%)
Public interest whistleblowers
(non-role reporters, reporting other
than personnel or workplace
grievances)
N=913
Missing=36 (4%) N=877
Treated well or same
by management and
co-workers
N=686 (78%)
Treated badly
by
co-workers only
N=32 (4%)
Treated badly
by management and/or
by co-workers
N=191 (22%)
Treated badly
by management
and co-workers
N=46 (5%)
Treated badly
by management
only
N=113 (13%)
Figure 5.2. Proportion of reporters indicating
bad treatment by management (%)
(n=55 agencies)
7
6
Cth (n=17)
Number of agencies
5
NSW (n=20
Qld (n=12)
4
WA (n=6)
3
2
1
0
0-5%
6-10%
1115%
1620%
2125%
2630%
3135%
3640%
4145%
4650%
% of all reporters indicating treated 'quite' or 'very' badly by management
5155%
What is ‘good’ treatment?
‘This incident has done nothing for my career in this
organisation as I have tended to just stay in low-key
positions and away from the stress of finding fraud again.
Basically, I have withdrawn and taken on interests outside
my work that involve me in more interesting projects and life
experiences. Yet my experience could have been a lot
worse, such as, conspiracy within the organisation or
management not taking it seriously. It [was] the biggest
fraud this organisation has experienced. Part of me is proud
to have had the courage to report it, part of me doesn’t want
to know about it.’
- ‘Successful’ whistleblower, Internal Witness Survey
Risk factors for perceived mistreatment
For mistreatment by management:
1. Matter has gone external (chicken or egg?)
2. No positive outcome from investigation (ditto?)
3. Wrongdoing was directed at the whistleblower
4. Wrongdoer(s) at a higher level than reporter
5. Wrongdoing perceived to be serious
6. Wrongdoing perceived to be frequent
4.7x
4.1x
3.5x
2.7x
1.8x
1.8x
For mistreatment by co-workers:
1. Wrongdoing perceived to be serious
2. Lack of any positive outcome from investigation
3. More than one person involved in wrongdoing
4. Size of immediate workgroup <20 people
3.5x
3.2x
2.8x
2.1x
Additional risk factors (where otherwise low-risk):
1. More than one internal reporting stage before resolved;
2. Outcome positive, but no investigation or investigation unknown;
3. Reporter employed part-time, casually or on contract.
Protective factor (against co-worker mistreatment, otherwise high-risk):
1. Age of reporter (older).
Sources of help, assistance and support
Total
(n=213  139)
Sources of help & support
1. Other work colleagues at my level
50%  52%
2. My family
44%  52%
3. Other work colleagues below my level
22%  25%
4. A union or professional association
(5)
16%  19%
5. My supervisor
(6)
16%  10%
6. A counsellor or counsellors
(4)
14%  22%
7. Senior managers
13%  8%
8. Internal ethics, audit, investigation unit
12%  5%
9. Human Resources / EEO unit
7%  4%
10. External govt watchdog agencies
(14)
3%  4%
11. Member(s) of Parliament
12. Internal support program
4%  2%
(=8)
2%  5%
13. Whistleblower support group
2%  4%
14. The media
2%  3%
15. Other community based support
2%  1%
16. Other specialist officers or units
1%  1%
Internal Witness
Survey
(Case study agencies)
Q47:
After report?
(n=213)
Q57: After
experienced bad
treatment or
harm?
(n=139)
Table 9.7
p.215
How much effort is going into
whistleblower management?
• 46% of agencies had no procedures for identifying
whistleblowers who need management support and
protection
• 30% of agencies had no staff responsible for protecting
whistleblowers from reprisals
• 70% of agencies did not carry out any assessment of
the risks of reprisal when officials blow the whistle
• In case study agencies, less than 1% of public interest
whistleblowers made it onto the ‘radar’ of agency
whistleblower support programs
• In case study agencies, 42% of managers and
casehandlers believed that disciplinary action is
‘sometimes’ or ‘often’ used as a cover for reprisals
Only 5 out of 175
agencies had
‘reasonably strong’
procedures
measured against
the Standard
Whistling While They Work – Australia
Overall ranking of case study agency performance
B
A
M
P
N
Agency rankings
E C F D O L
2
1
10
8
12
3
15
6
14
5
11
13
-
7
9
2
1
9
12
6
3
10
5
4
11
14
13
8
15
7
4
2
1
7
3
6
11
13
5
8
9
10
15
14
12
5
1
2
10
6
3
4
7
9
12
8
13
15
14
11
3
1
2
6
8
4
5
7
9
10
13
11
14
15
12
3
2
4
1
11
7
12
8
15
6
5
9
13
10
14
1
13
6
4
7
14
8
5
10
12
3
9
11
2
15
7
5
9
1
2
4
11
12
3
6
13
10
8
15
14
1
6
7
3
5
11
2
9
14
10
13
4
8
12
15
Sum of ranks
26
31
40
44
48
52
63
66
69
75
78
79
92
97
100
Overall ranking
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Agency
Procedures comprehensiveness
Indicator Survey1 results:
1. Attitudes to reporting
2. Awareness of legislation
3. Awareness of policies
4. Whistleblowing propensity
5. Trust in org response
6. Inaction rate (serious)
7. Knowledge of investigation
8. Treatment following report
G
K
H
I
Second report:
Whistling While They Work –
A good practice guide for managing internal reporting
of wrongdoing in public sector organisations
Peter Roberts, A. J. Brown &
Jane Olsen, 2011
http://epress.anu.edu.au/
whistling_citation.html
Elements of an organisational
whistleblowing program:
1.
Organisational commitment
2.
Encouragement of reporting
3.
Assessment and investigation of reports
4.
Internal witness support and protection
5.
An integrated organisational approach
The big institutional risks
of mishandling whistleblowing
1.
Organisational injustice, leading to exposure to
liability for failure in duty of care to employees.
2.
Damage to reputation – it’s still going to come out
eventually.
3.
Suppression of internal disclosures, ‘speaking up’
culture – leading to larger, festering problems.
Employers have already been held liable for
failing to protect whistleblowers
Wheadon v State of NSW, NSW District Court (2001)
No. 7322 of 1998
NSW Police Service
Breach of duty of care to its employee
$664,270 in damages:
- failing to provide a proactive system of protection;
- failing to give support and guidance;
- failing to prevent conduct of colleagues who ostracised him.
A Key Metric: How many don’t report?
% of respondents who observed very/extremely serious
wrongdoing
Figure 2.4. Inaction rates (very/extremely serious)
100
95
7.4
8.3
16.1
90
20.0
20.8
26.7
85
16.7
80
75
18.8
29.3
11.2
43.8
12.5
37.0
70
8.3
20.0
65
18.3
60
Mean
28.6%
nationally
17.4
55
50
14.1
45
40
75.0
35
30
72.7
60.0
51.9
25
66.7
68.8
55.0
52.2
Did not report, no action, no-one else reported
Did not report but dealt with by self / others reported
Report
Missing
20
15
10
42.2
5
0
B
H
F
C
G
D
Case study agencies
A
E
I
Fig 2.4
p.49
Key messages from the research
Key message of importance to staff:
If in doubt, report (and you can trust
in the fairness of the response)
Key message to management:
Do not leave the welfare of your
employees who report, to chance