Being a whistleblower is high risk and low reward – is that going to change?

Consider the common experiences of whistleblowers across Australia.

Richard Boyle, who worked as a debt collection officer in the Australian Taxation Office (ATO), accused his employer of using overly aggressive debt collection tactics. The office had, for example, continued to pursue a woman who was fleeing domestic violence, and who had said she was planning to repay her debt once she was able to sell her house. It had also taken money from debtors without their knowledge.

Boyle originally reported his concerns internally, then via the Inspector General of Taxation.

He only went public when those pathways led to dead ends. As a result, during his time with the ATO, he was bullied to the point of suffering post-traumatic stress disorder (PTSD). He is still facing legal action and a potential prison term after a judge ruled that his actions to collect evidence about malpractice were not immune to prosecution under the Public Interest Disclosure Act (PID Act).

Ex-Defence lawyer David McBride was arrested at Sydney Airport in September 2018, having allegedly leaked classified Defence information to the media. The information he allegedly provided enabled the reporting of war crimes committed by Australian special forces in Afghanistan, including unlawful killings of civilians. He had originally gone to the Inspector General of the Australian Defence Forces, without result.

McBride, like Boyle, is also expected to stand trial, with the chance of a lengthy prison sentence, having been let down by the PID Act when his legal team was told an order had been placed on proceedings which meant any defence evidence could be removed.

Then there’s Jeff Morris, who, for five years, fought an internal battle at the Commonwealth Bank of Australia. He had blown the whistle internally, then to ASIC, about reckless and incompetent advice, a culture of bonuses, and a complete disregard for the wellbeing of customers. When little changed, he went public.

Morris’s information helped lead to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which revealed a litany of bad behaviour, including a relentless pursuit of profit over people. Morris was vindicated, but at what cost?

After speaking with numerous other whistleblowers, he told Whistleblower Network News, “You lose your career, you lose your family and you get diagnosed with PTSD. It is three for three in every case”.

The cases of Boyle and McBride may yet go four for four – they could also lose their freedom.

Australia: “Paradise for white collar crime”?

Former ASIC chairman Greg Medcraft famously said in 2014 that Australia is a “paradise for white collar crime”, with soft punishments for corporate offences. Increased civil penalties and more jail terms were needed, he argued.

Considering the punishments now on the cards for whistleblowers, it’s easy to argue that little has changed since.

But there is cause for optimism, says Kieran Pender, Senior Lawyer at the Human Rights Law Centre.

“Of course, it is frustrating to see the mistreatment of whistleblowers, people on trial for telling the truth about wrongdoing,” Pender says.

“Data shows that whistleblowers too often suffer in their workplaces when they speak up. There are reasons for pessimism. But I’m optimistic that we will see reform in the years ahead. We should see the establishment of a whistleblower protection authority. We’ll see societal change and recognition across Australia of the importance of whistleblowers.”

Whistleblowers make Australia a better place, Pender says, which is why it’s vital that the push for stronger protections continues.

“The Human Rights Law Centre and The Australia Institute have conducted polling that shows the level of support for whistleblowers is very high, so I remain optimistic that in the years ahead we’ll see stronger protections and an end to the prosecution of whistleblowers,” he says.

Aligning public support and legal support depends on political will. A framework like that in the United States would offer effective protection laws as well as financial and other support for whistleblowers.

“Wrongdoers don’t want accountability. That’s why whistleblowers are so important,” Pender says.

“We’ve also seen in the past a lack of political will to fix the system. But the current government has committed to seeking substantial reform, and to considering whether to establish a whistleblower protection body.”

Pender says that he and his colleagues at the Human Rights Law Centre think this is long overdue.

“We need that change,” he says.

He adds that the establishment of the National Anti-Corruption Commission (the NACC, stood up on 1 July this year) was a significant step forward. A first round of public sector whistleblowing reform has also been conducted.

The current government intends to carry out the review of the private sector whistleblowing regime in the Corporations Act 2001, which the previous parliament had agreed to during its term.

“Reform will probably follow from that,” Pender says.

“But we need more. And particularly, we need an end to the prosecution of whistleblowers, because that has a chilling effect on potential whistleblowers across Australia. [Prosecutions] undermine the good work the government has said it is committed to doing.”

The past does not bode well for the future

The negative outcomes of whistleblowing are not unique to Boyle and McBride. A report from the Human Rights Law Centre, The Cost of Courage, highlighted the failure of whistleblowing laws.

“The purpose of whistleblowing law is to protect whistleblowers from suffering and to provide them with vindication and compensation when they are unlawfully mistreated,” Pender says.

“We know from research that whistleblowers across Australia are mistreated. And yet, under the two primary laws for protecting whistleblowers in Australia – the federal public sector and federal private sector whistleblowing laws – there hasn’t been a single successful case brought by a whistleblower since those laws were introduced.”

The Cost Of Courage report, an analysis of 78 judgements across 70 cases, revealed that:

• Only one judgement resulted in compensation for detriment faced after speaking up.
• Whistleblowers succeeded on substantive issues in only seven judgements.
• There was not a single successful judgement under several key, in-force regimes, including federal laws protecting public sector, private sector and union whistleblowers; as well as public sector laws in Victoria, South Australia, Western Australia and the Northern Territory.

Recommendations in the report include:

• Robust law reform delivering accessible, consistent and comprehensive whistleblower protections
• New, dedicated institutions to protect and empower whistleblowers
• A wider, sustainable ecosystem to support whistleblowers

To blow, or not to blow?

Results from past whistleblowing cases are not encouraging for those who witness corporate or government wrongdoing.

For that reason and more, Brian Martin, Emeritus Professor of Social Sciences at the University of Wollongong, author of Whistleblowing: A Practical Guide, and International Director of Whistleblowers Australia, has an unexpected response when asked about advice he would offer to would-be whistleblowers.

“The first thing I’ll say is, ‘Don’t do it’,” Martin says.

“Ninety per cent of the people that contact me have already blown the whistle. But for those who haven’t, I strongly recommend that they stop and think strategically about what it is they’re trying to achieve.”

Martin suggests answering a series of questions to assess the best path forward:

• What are the obstacles?
• What are the dangers?
• Who are your allies?
• How can you be most effective?

This process of collecting and analysing all available information must include a clear-eyed assessment of threats to personal safety and security. And Martin adds that it must also include a clear understanding of the lack of legal protections.

“Current whistleblowing laws are positive and negative at the same time,” Martin says.

“They are positive in that they encourage people to believe that they will be protected and that speaking out is something that is worthwhile. But they’re negative in that they give people a false sense of safety. People can fall into a trap by believing that they are protected.”

If an individual witnesses wrongdoing and blows the whistle, that single organisational problem may or may not be solved. But nothing about the organisation’s culture will be likely to change. It will continue to behave as it always has, but the whistleblower will be out of a job, potentially facing legal action and unable to effect any further change.

Martin doesn’t believe the would-be whistleblower should simply give up and admit defeat.

We have recently seen what can happen when one potential whistleblower is silenced – albeit temporarily.

Colleen Taylor, who had been in the public service since 1984, was in Centrelink’s compliance and quality review function when her team in Brisbane was briefed on what would come to be known as robo-debt.

She knew it was wrong. She tried to speak up at the time through official channels, including by writing to then-department secretary Kathryn Campbell and meeting with members of Campbell’s team.

Taylor told the 7am Podcast’s Rick Morton that she had said to her team leader: “‘You cannot do this to people. People will commit suicide, you cannot do this to people.’ And I remember one of the other team leaders said to me, ‘You're right, Coleen, but it's just gone too far’.”

Her approach had no impact on the new compliance program.

Soon after she saw news of robo-debt victim Rhys Cauzzo’s suicide, Taylor went on leave and then retired. She was warned that if she spoke of anything she had learnt during her long public service career, she could face two years in prison.

She was silenced – but only for five years, until she provided the Royal Commission evidence that exposed the illegality of robo-debt and the indifference of those who designed and implemented it.

Taylor, speaking with Morton, questioned whether she might have taken different action at the time of her retirement – perhaps staying to fight the new system. Regardless, her impact in speaking up when she could has been seismic.

Her desire, she told Morton, is that cultural change will come out of the Royal Commission:

“And that's what I hope from the [Royal] Commission, that they identify the people who should never again be in a managerial position where they are looking after things that involve the public […] There was the empathy gene that had just gone completely, you know? Whether that was a prerequisite to get into management, I don't know.”

Martin suggests that if cultural change is what a potential whistleblower desires – and he told us that it most likely is – they should prepare to play the long game from inside their organisation.

The other option – the long game

In his book Official Channels, Martin writes:

“A whistleblower can be thought of as a person who speaks truth to power. In the most dramatic instances, whistleblowers speak out about corruption that implicates senior management. To speak of justice in such cases is to expect that some junior figure in an organisation, by shining the light on a problem, can bring down top figures and fundamentally change operations. If heed were taken of whistleblowers all over the place, it would be revolutionary: systematic corruption would be challenged and organisational hierarchies jeopardised. From everyday observation, this rarely happens. Instead, the whistleblowers suffer, with their jobs and careers sacrificed, yet seldom with much impact on power structures.”

Instead, he says, if real change is what a whistleblower desires, then whistleblowing is probably not the solution.

“The treatment of whistleblowers is incidental, in a sense, to the wider issue of how we make a better set of organisations and, therefore, a better society,” he says.

And so, while whistleblowing is admirable, it’s not the only choice a potential whistleblower might make. They may choose instead to stay in their role, figuring out the skills that they will need, mapping allies inside and outside the organisation, and identifying the individuals they must influence to create change.

It’s likely that numerous people are already working in this way in many organisations.

Members of Whistleblowers Australia mostly hear from people who have already spoken out and have suffered reprisals.

“They’re often coming to us in desperation. But we don’t hear from the ones who are effective insiders, the ones who play the game carefully and who bring about change without making a big noise,” Martin says.

“So, of the huge number of whistleblower cases, only a few tip-of-the-iceberg cases receive media coverage. That coverage is often helpful, and improvements to the current laws are also good. My concern with all of that is that it could be a distraction from individuals developing skills so they can be more effective in bringing about real culture change.”

APESB whistleblower guidance

The Accounting Professional Ethical Standards Board (APESB) has produced a technical staff publication to help guide its members in public practice or business when encountering circumstances that involve whistleblowing.

It assists potential whistleblowers in figuring out:

• Whether members should consider if they are covered by any form of protection
• Whether they are an eligible whistleblower
• Whether they are disclosing to an eligible recipient
• Whether they fully understand the available protection

It then offers clear steps, illustrated by numerous case studies, for identifying, evaluating and addressing threats. This is a good starting place for accountants concerned about an issue they have witnessed.

Download the APESB whistleblower guidance.