1. 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

2. Contents Introduction & legal landscape ‘A Problem’ Recognising and encouraging public interest disclosures Protecting & supporting whistleblowers (and others) Management obligations More questions & discussion

3. Queensland Government Crime & Misconduct Commission Queensland Ombudsman Office of Public Service, M&E Griffith University New South Wales Government NSW ICAC NSW Ombudsman University of Sydney Western Australian Government Corruption & Crime Commission WA Ombudsman Public Sector Standards Commissioner Edith Cowan University Australian Government Commonwealth Ombudsman Australian Public Service Commission Charles Sturt University Transparency International Australia Victorian, ACT & NT Govts Ombudsman Victoria NT Comr for Public Employment ACT Chief Minister’s Dept Monash University Australian Research Council Whistling While They Work: Enhancing the Theory & Practice of Internal Witness Management in the Australian Public Sector www.griffith.edu.au/whistleblowing

4. Integrity Agency Survey (Practices & Procedures) n=16 Integrity Casehandler Survey n=82 Integrity Agencies General Agencies WWTW - Quantitative Research Employee Survey WAQldNSWCth 30463838573 Agency Survey (Procedures) 11825323427 Total no. of public servants surveyed – 23,177 Total responses – 7,663 (33%) Case Study Agencies 153444Selected 8720282415Volunteered Managers (n=513) Casehandlers (n=315) Internal Witness Survey n=240 n=828 Procedures Assessment 17528316056

5. http://www.griffith.edu.au/whistleblowing http://epress.anu.edu.au/whistleblowing_citation.html

6. 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: http://epress.anu.edu.au/ whistling_citation.html 1.Organisational commitment 2.Encouragement of reporting 3.Assessment and investigation of reports 4.Internal witness support and protection 5.An integrated organisational approach

7. “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) What is whistleblowing? ‘Public interest’ whistleblowing As opposed to matters that are purely private, personal, or industrial grievances

8. Reform of Australian whistleblowing legislation JurisdictionOriginalReformedTitle South Australia*1993PendingWhistleblowers Protection Act Queensland*19942010Public Interest Disclosure Act ACT19942012Public Interest Disclosure Act New South Wales19942010Public Interest Disclosure Act Commonwealth1999Underway?(Public Service Act, s.16) Victoria2001Pending?Whistleblowers Protection Act Tasmania20022009Public Interest Disclosures Act Western Australia2003Pending?Public Interest Disclosure Act Private sector*2004Pending?Corporations Act, Part 9.4AAA NT2008--Public Interest Disclosure Act * Private sector coverage

9. State of reform – Australian whistleblowing legislation JurisReformOriginal1. Effective system & oversight 2. Public disclosure 3. Effective remedies ACT2012199411NKTW NSW2010-11199413NKTW QLD*201019942?2NKTW WA2012?20032? NKTW VIC??20012?MissingNKTW TAS200920022?MissingNKTW NT--2008?MissingNKTW CTHWaiting…1999?Proposed? ??? SA*2012?1993MissingNKTW Corps Act*Stalled?2004Missing NKTW * Some private sector coverage NKTW: Not known to work

10. 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)

11. ‘A Problem’: Michelle, Peter & Alberto 1.Has Michelle done the right thing? Has Peter?

12. Is whistleblowing a good thing? Should it be encouraged? Why?

13. 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? 1=not important to 4=extremely important (a) Case- handlers (n=285) (b) Managers (n=410) (c) Integrity Casehandlers (n=70) aRoutine internal controls (e.g. normal financial tracking, service monitoring) 3.24 3.26 bInternal audits and reviews 3.193.063.27 cManagement observation 3.363.303.17 dClient, public or contractor complaints 2.942.973.09 eReporting by employees 3.423.303.51 fExternal investigations 2.662.592.94 gAccidental discovery 2.452.372.36

14. 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? 1=not important to 4=extremely important (a) Case- handlers (n=285) (b) Managers (n=410) (c) Integrity Casehandlers (n=70) aRoutine internal controls (e.g. normal financial tracking, service monitoring) 3.24 3.26 bInternal audits and reviews 3.193.063.27 cManagement observation 3.363.303.17 dClient, public or contractor complaints 2.942.973.09 eReporting by employees 3.423.303.51 fExternal investigations 2.662.592.94 gAccidental discovery 2.452.372.36

15. 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.

16. 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.

17. No 29% (n=2188) Yes 71% (n=5473) Saw wrongdoing (defined) in last two years? Reported the most serious wrongdoing? All respondents n=7663 No 57% (n=3125) Yes 39% (n=2146) (28% of all respondents) Yes Wrongdoing only reported in their official capacity, and/or manager only reporting employees below level 29% (n=619) No (potential whistleblowing) 70% (n=1497) (20% of all respondents) Likely to have reported as part of normal role? Yes 38% (n=549) No (public interest whistleblowing) 61% (n=913) (12% of all respondents) Wrongdoing was personnel or workplace grievance? Missing n=202 Missing n=30 Missing n=35 An overview of whistleblowing in the Australian public sector p.38 Australia (12%): 197,000 NZ core (12%): 4,337 How much whistleblowing goes on?

18. Figure 4.1. Reporting Paths of Non-Role Public Interest Reporters (%) Employee Survey, Q28 (n=858) 50.1 38.1 7.1 1.7 1.2 0.9 0.5 0.3 Internal 97.1 External 2.9 Initial report None 51.3 Internal only 39.0 Mixed 7.6 External only 2.1 Further report(s) ‘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.

19. Sample advice to public employees regarding reporting points Queensland Government 2009

20. A Key Metric: How many don’t report? Figure 2.4. Inaction rates (very/extremely serious) Mean 28.6% nationally Fig 2.4 p.49

21. 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?

22. 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 non- reporters; Belief something will/must be done (the vital issue for both reporters & non-reporters).

23. 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) The diverse reality of whistleblowing...

24. 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?

25. 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?

26. Figure 5.1. Treatment by management and co-workers (%) Public interest whistleblowers (non-role reporters, reporting other than personnel or workplace grievances) N=913 Treated well or same by management and co-workers N=686 (78%) Treated badly by management and/or by co-workers N=191 (22%) Treated badly by management only N=113 (13%) Treated badly by management and co-workers N=46 (5%) Treated badly by co-workers only N=32 (4%) Missing=36 (4%) N=877

27. Figure 5.2. Proportion of reporters indicating bad treatment by management (%) (n=55 agencies)

28. 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

29. Risk factors for perceived mistreatment For mistreatment by management: 1. Matter has gone external (chicken or egg?) 4.7x 2. No positive outcome from investigation (ditto?) 4.1x 3. Wrongdoing was directed at the whistleblower 3.5x 4. Wrongdoer(s) at a higher level than reporter 2.7x 5. Wrongdoing perceived to be serious 1.8x 6. Wrongdoing perceived to be frequent 1.8x For mistreatment by co-workers: 1. Wrongdoing perceived to be serious 3.5x 2. Lack of any positive outcome from investigation 3.2x 3. More than one person involved in wrongdoing 2.8x 4. Size of immediate workgroup <20 people 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).

30. Sources of help, assistance and support Sources of help & support Total (n=213  139) 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) 4%  2% 11. Member(s) of Parliament 3%  4% 12. Internal support program (=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% Table 9.7 p.215 Internal Witness Survey (Case study agencies) Q47: After report? (n=213) Q57: After experienced bad treatment or harm? (n=139)

31. 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 How much effort is going into whistleblower management?

32. Only 5 out of 175 agencies had ‘reasonably strong’ procedures measured against the Standard

33. Agency rankings AgencyBAMPNECFDOLGKHI Procedures comprehensiveness 211081231561451113-79 Indicator Survey1 results: 1. Attitudes to reporting 219126310541114138157 2. Awareness of legislation 421736111358910151412 3. Awareness of policies 512106347912813151411 4. Whistleblowing propensity 312684579101311141512 5. Trust in org response 324111712815659131014 6. Inaction rate (serious) 113647148510123911215 7. Knowledge of investigation 759124111236131081514 8. Treatment following report 167351129141013481215 Sum of ranks 2631404448526366697578799297100 Overall ranking 123456789101112131415 Whistling While They Work – Australia Overall ranking of case study agency performance

34. 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: http://epress.anu.edu.au/ whistling_citation.html 1.Organisational commitment 2.Encouragement of reporting 3.Assessment and investigation of reports 4.Internal witness support and protection 5.An integrated organisational approach

36. 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.

37. 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.

38. Written by JJ on Jul-27-10 5:07am JJ

39. A Key Metric: How many don’t report? Figure 2.4. Inaction rates (very/extremely serious) Mean 28.6% nationally Fig 2.4 p.49

40. If in doubt, report (and you can trust in the fairness of the response) Key message of importance to staff: Do not leave the welfare of your employees who report, to chance Key message to management: Key messages from the research