Australia has new whistleblowing laws. Now for the governance.

To deliver on its purpose, an effective whistleblowing regime needs not only legislation and regulation, but also processes and governance frameworks within organisations.

Without good governance and processes, too much can be left to chance and individual situations, says Professor AJ Brown, the leader of the Centre for Governance & Public Policy at Griffith University and a key driver of research in the collaborative Whistling While They Work 2 project.

In one instance, a line manager might champion and protect a whistleblower who comes forward with evidence of wrongdoing. 

In another, the line manager might be the one under investigation, and be in a prime position to undermine and punish the person who comes forward.

New whistleblowing laws

Australia has made significant strides in the area of whistleblower protection for the private sector, with new legislation to amend the Corporations Act passed in December 2018.

“Those new laws have really raised the bar,” says Brown.

“The changes were done with a lot of support and recognition within the business community that serious reform was overdue.”

Recent controversy over pursuit of whistleblowers in the public sector, after disclosures in the intelligence and national security areas, has put the spotlight back on public sector reform, but Brown is confident that reform is not far away.

The Australian Government, he says, has confirmed it is reviewing the public sector rules, which were last amended in 2013.

“I think the question is how comprehensive and substantial that review will be, but I think there is good potential for the public sector to catch up,” says Brown.

Whistleblower guide

The Whistling While They Work project, the result of collaboration between a range of tertiary institutions, the Australian Securities and Investments Commission and professional organisations such as CPA Australia, is now into its third year and has had a significant input into the changes in Australia and internationally, where it is informing the creation of global standards.

From an analysis of the whistleblowing policies of 699 organisations and the experiences of 17,778 individuals in 46 public and private organisations, the project’s most recent initiative is a five-step guide for better policy and practice.

The guide is designed as a companion to the new legislative and regulatory requirements to help organisations not only comply with the new regime, but also implement best practice governance.

The five steps span the design and implementation of whistleblowing programs by organisations and also on key actions from policymakers.

The steps are:

• Recognising and assessing whistleblower disclosures
• Supporting and protecting whistleblowers
• Roles, responsibilities and oversight
• The regulatory role: meeting new challenges
• Public interest: respecting whistleblowing’s third tier

“This is really designed as a holistic picture of the key actions organisations need to support whistleblowers,” says Brown.

“These five steps need to be strong together for there to be an effective regime and culture supporting whistleblowing, which starts in organisations with governance policies, but exists in the context of regulation and ultimately disclosure.”

The first Whistling While They Work report, says Brown, showed that even when the “spirit was willing” for organisations to address whistleblowing, those efforts were often undermined by the lack of a practical framework.

Compensation for whistleblowers?

The five steps, he says, are an attempt to address this and provide a pragmatic way forward and embed best practice in organisations so they can deal effectively with whistleblowing disclosures before they manifest publicly and become crises for the board, investors or issues of public interest.

“Very often it’s too late if you wait for a significant incidence to erupt, which requires the attention of the board,” says Brown.

“That can be indicative that the system is not working, and it’s much better to have routine oversight.”

While Australia has made progress in improving its whistleblower regime in recent years, Brown concedes that more needs to be done.

A joint parliamentary committee in 2017 recommended that the Australian Government include a compensation or reward scheme, and also advocated the creation of a dedicated authority to protect whistleblowers.

Neither of these recommendations made it through to the final legislation, which parliament passed in 2018, but Brown remains optimistic, particularly on the question of a whistleblower protection authority.

The authority, he says, is the “big missing link” in Australia’s regime, and creating one depends on whether the government is prepared to “bite the bullet” and include it on the law reform agenda.

“It’s always a big ask to get resources to create these types of agencies, but the case for it is pretty clear.

“It’s going to be needed at some point, so we might as well get on to it now.”