It’s a sad fact that whistleblowers almost always bear a high personal cost for exposing illegal and unethical behaviour because in doing so, they put people with responsibilities higher up the food chain in jeopardy.
From early childhood, reporting genuine wrongdoing becomes conflated with telling fibs to get others in trouble. The result is most people have it drilled into them to just keep their mouth shut and mind their own business, or be branded an untrustworthy tattle-tale.
Combined with the actual consequences that have befallen past whistleblowers, there is good reason to keep your head down. The number of public servants coming forward with information about shifty behaviour is on the rise, but the statistics also show fear of reprisals is still prevalent.“The external disclosure must not, on balance, be contrary to the public interest … and only disclose as much information as is reasonably necessary”
Would a little money sweeten the deal and encourage more whistleblowers to come forward? South Australian senator Nick Xenophon thinks it might.
He suggests changing legislation to offer a “lump sum or income protection” to people who risk their current job, and their future employment prospects in many cases, by blowing the whistle on corruption. In the US, whistleblowers can get a kind of bounty by sharing in fines paid by organisations they help to prosecute.
“We need to break the culture of silence that can pervade all organisations — governments, corporations, unions and even sporting clubs when something is not quite right,” said Xenophon. “Whistleblowers just don’t come forward in this country because doing so invariably leads to their job and career being destroyed.”
Public sector whistleblowers on the rise
Public sector whistleblowers already have more protection than everyone else — and more than they had in the past — via the Public Interest Disclosures Act, which took effect two years ago. The scheme is supposed to protect their identities, provide a strong basis to launch legal action in response to any threats or actual reprisals against them — or against suspected whistleblowers — and give immunity to civil, criminal or administrative liability for the disclosure.
The Commonwealth Ombudsman’s annual report notes “initial doubts” about the new scheme but says it has been “instrumental” in bringing important information to light and responsible for an 11% increase in disclosures by public servants:
“This has been acknowledged by senior managers as having been beneficial to the administration of their agency.”
The Ombudsman says agencies that had the least PID reports aren’t necessarily squeaky clean. They might just have low awareness of the new scheme, less accessible PID officers, or a “culture that complaint information is not a valuable resource for improving performance”.
The annual report also lists 53 complaints to the Ombudsman in 2014-15 about how agencies reacted to PIDs. Whistleblowers were unhappy with how thoroughly their disclosures were investigated and decisions not to investigate, how well they were kept informed, and even complained of reprisals and breach of confidentiality. The Ombudsman found “shortcomings” in only two cases, which the agencies agreed to address, and reports:
“We have noted a trend in complaints relating to allegations of reprisal action…
“We have also identified a trend for some disclosers who are disappointed with the outcome of a PID investigation to make complaints about alleged reprisal actions.”
The report also notes some confusion about the confidentiality provisions that make it a crime to expose the whistleblower’s identity and forbid their name being given to the principal officer investigating their PID without consent, and the exceptions to them.
It could be impossible to investigate the issue without knowing the person’s identity, and their refusal is a valid reason to stop the investigation. Their name may also be needed to provide procedural fairness to someone accused of wrongdoing, such as bullying and harassment. The Ombudsman explains:
“The object of the PID Act is not to supplant normal standards required of administrative investigations by public officials. The Act does not override the requirement that an investigator make appropriate enquiries and gather relevant evidence, apply procedural fairness, and ultimately apply the appropriate weight to the evidence as the basis of findings or conclusions.”
Agencies should explain at the outset that whistleblowers will often be asked for permission to reveal their identity in the course of an investigation, the Ombudsman advises, and give “assurances regarding protection from reprisal action, supported by clear action and a commitment to supporting disclosers”.
Public servants should also know that if they make a PID, their identity could be revealed to the principal officer or others investigating the claim anyway, under various exceptions including “for the purposes of the Act”.
So you’re thinking about blowing the whistle…
To be protected by the act, one has to report the information internally first and wait until an investigation has run for more than 90 days (or longer in some cases) before sharing the information publicly.
Whistleblower advocates contend such internal investigations are when things are most likely to turn nasty, in an effort to minimise embarrassment to the organisation and senior staff. To most former whistleblowers, the best form of protection is going public with all the evidence.
Public sector whistleblowers can also make an external disclosure, to the media for example, if they “reasonably believe that the investigation or its outcome was inadequate” according to the Ombudsman’s advice:
“The external disclosure must not, on balance, be contrary to the public interest, and you may only disclose as much information as is reasonably necessary to identify the disclosable conduct.”
There is also a provision for emergency disclosures “if you reasonably believe there is a substantial and imminent danger to health or safety or to the environment” but only what is “reasonably necessary” to avert a looming crisis. The whistleblower is again expected to make an emergency disclosure internally first and wait for an investigation to run its course, unless “exceptional circumstances” apply.
The PID Act never protects anyone revealing anything to foreign officials, anything about the conduct of parliamentarians, or any “proper activities” of intelligence agencies.
Talking to a lawyer doesn’t count as an external disclosure, but there are the usual caveats about not sharing secret spy stuff or anything else sensitive unless the lawyer has the right clearance.
A two-year review of the PID Act is due in the first half of this year.