Towards new laws for whistleblowing

Posted by on 09/05/2017

The world’s largest research project into whistleblowing reinforces the need for a stand-alone, ‘one-stop-shop’ Act for corporate whistleblowers, according to Governance Institute.

This is because regulator-specific provisions across many pieces of legislation have not provided the best protection for those exposing misconduct.

Governance Institute is one of 23 organisations supporting the Whistling While They Work 2 research project led by researchers from Griffith University, Australian National University, University of Sydney and Victoria University Wellington.

This ongoing study is the first ever survey to collect data on whistleblowing processes in a consistent way and on such a scale. It’s received input from 634 organisations in Australia and New Zealand, across 18 sectors.

Its interim findings, released in a new report in early May, show that 23 per cent of organisations still have no particular system in place for recording and tracking wrongdoing concerns, nor any particular support strategy for staff who raise these concerns.

In addition, over 80 per cent do not have processes for providing compensation or restitution to whistleblowers who suffer detrimental outcomes.

‘If we want whistleblowers to come forward, we’ve got to streamline the process,’ says Governance Institute chief executive Steven Burrell.

‘The whistleblower provisions in the Corporations Act 2001 are very narrowly focused and require whistleblowers to have a detailed understanding of whether the misconduct they are reporting is covered by corporate law or could relate to competition, tax, workplace health and safety, bribery or corruption or industrial relations, all of which are covered by different legislation and regulators.’

Governance Institute argues that a whistleblower should be protected, irrespective of whether the regulator or agency they initially approach refers the allegation to another body to investigate, claiming disclosures within the corporate sector should not be confined to the Australian Securities and Investments Commission (ASIC) or the Australian Taxation Office (ATO).

‘We do not believe that a whistleblower should be required to have a nuanced knowledge of legislation to know which regulator or law enforcement agency they approach to qualify for protection. It is a strong disincentive to making disclosures if employees or concerned members of the public feel that they require legal advice before making any such disclosure,’ says Burrell. 

According to the researchers, the Australian Government has recognised that the protections available to corporate whistleblowers are lagging behind those of other countries including the UK and US.

But they add: ‘It should be noted that neither of those jurisdictions have yet hit on the best way to set and ensure the standards for strong organisational processes, on which such protection relies.’

Thus, their research suggests that the answers will lie in new, rather than copied, responses to whistleblowing challenges.

This first stage of their analysis looked at five key whistleblowing processes that together act as important indicators for assessing the strength of these practices. These were incident reporting and tracking, support strategy, risk assessment, dedicated support and remediation.

In future analyses, another five key questions will be used to examine the strength of whistleblowing processes. This means participating organisations will be able to order an individualised analysis that allows them to see how they score compared to other companies.

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