Whistle Blower Act and Witness Protection Schemes: Pitfalls and Best Practices - An Australian Perspective John McFarlane Adjunct Fellow Strategic and Defence Studies Centre, and ARC Centre of Excellence in Policing and Security Australian National University 1

Acknowledgements The major part of this presentation is based on contemporary research work undertaken under the leadership of Dr A J Brown, John F Kearney Professor of Public Law, at Griffith University, Gold Coast Campus, Queensland. Professor Brown is supported by a number of outstanding academics from Melbourne University and other Australian and overseas universities, as well as a number of industry partners.

Whistling While They Work (2005 – 2011) [Funded by the Australian Research Council] Objectives 1.Management and protection of internal witnesses, including whistleblowers, in the Australian public sector 2.Identify and promote current best practice in workplace responses to public interest whistleblowing, using first- and second-level managers to identify strategies to prevent, reduce and address reprisals and other whistleblowing-related conflicts. Six Australian Universities and 14 Industry Partners Research Questions 1.Incidence and significance of public sector whistleblowing? 2.Experiences of public sector whistleblowers? 3.Incidence, nature and influence of internal witness management/ whistleblower protection programs in the public sector?

Whistling While They Work (2005 – 2011) [Funded by the Australian Research Council] Wrongdoing Categories and Types [based on employee survey, internal witness survey and case-handler and manager surveys] 1.Misconduct for material gain 2.Conflict of interest 3.Improper or unprofessional behaviour 4.Defective administration 5.Waste or mismanagement of resources 6.Perverting justice or accountability 7.Personnel or workplace grievances 8.Reprisals against whistleblowers Six Australian Universities and 14 Industry Partners

Whistling While They Work (2005 – 2011) [Funded by the Australian Research Council] Key Findings: An Agenda for Action 1.More comprehensive agency systems for recording and tracking employee reports of wrongdoing 2.Agency procedures for assessing and monitoring the risk of reprisals (or other conflict) for those who report 3.Clearer and better advice for employees on the range of avenues available for reporting wrongdoing 4.Basis training for public sector managers in hoe to recognise and respond to possible public interest disclosures 5.A program of training for internal investigators in basic techniques, with special attention to issues of internal witness management Six Australian Universities and 14 Industry Partners

Whistling While They Work (2005 – 2011) [Funded by the Australian Research Council] Key Findings: An Agenda for Action 6.Adoption and expansion of structured support programs for employees who report wrongdoing 7.Improved mechanisms for monitoring the welfare of employees who report wrongdoing, from the point of first report 8.More detailed and flexible agency procedures for the investigation and remediation of reprisals and breaches of duty of care 9.A dedicated oversight agency or unit for the coordination of responses to employee-related wrongdoing 10.Legislative action to provide more effective organisational systems and realistic compensation mechanisms and to recognise public whistleblowing Six Australian Universities and 14 Industry Partners

Whistling While They Work (2005 – 2011) [Funded by the Australian Research Council] Future Research 1.Further detailed research on how agencies are handling whistleblower matters, including reporting, inaction and mistreatment rates 2.Tracking of the life and career outcomes of a cross-section of public interest whistleblowers 3.Further research into options for practical internal witness support and management intervention 4.Study of the handling of reprisal allegations in whistleblowing cases, and how to best handle and resolve such complex cases 5.Study of forms of compensation available to employees who suffer adverse outcomes from reporting – positive actions taken by agencies to extend the justice, legal and management frameworks in the workplace 6.More detailed analysis of the training needs of agencies Six Australian Universities and 14 Industry Partners

World Online Whistleblowing Survey [Part of a three year Australian Research Council research project] Objectives 1.Attitudes to the value of whistleblowing 2.Impact of new technologies and social media on whistleblowing 3.Differences in attitudes to whistleblowing in different contexts 4.Citizens’ propensity to ‘blow the whistle” on wrongdoing 5.Citizen preferences regarding how to blow the whistle on wrongdoing, including issues of anonymity, communication and trust with the media Who can answer the survey? 1.Anyone, anywhere in the world, provided they do so only once 2.As many people as possible – the survey is not just for whistleblowers 3.The survey is offered in a number of languages 4.Can be downloaded from

World Online Whistleblowing Survey [Stage 1 Results, 06Jun12] Initial Findings 1.Online survey of 1,211 Australians aged undertaken 03-06May12 2.Half of all Australians (50%) surveyed believe too much information is kept secret in organisations in our society. About 26% thought about the right amount of information is kept secret; 7% felt that not enough information is kept secret; and 18% could not say. 3.81% of adult Australians believe whistleblowers should be supported for revealing serious wrongdoing in an organisation, rather than being punished for revealing information. 4.A large majority (82%) consider it fairly or highly acceptable for someone to blow the whistle on people in charge of an organisation, with reduced majorities considering it acceptable to reveal wrongdoing by other staff or workers (77%) or by a family member or friend (60%) 5.Of the 66% of respondents who identified as an employee or organisation member, 80% indicated that if they observed wrongdoing, they would feel personally obliged to report it to someone in the organisation. 6.Many people (56%) thought the most effective way to stop serious wrongdoing in Australian society is to report it to people in authority, via official channels

World Online Whistleblowing Survey [Stage 1 Results, 06Jun12] Initial Findings 7. However, a very large majority (87%) still believe that whistleblowers should also be able to use the media to draw attention to wrongdoing – whether as a first option or when the need arises (41%), or as a last resort (46%) 8. While confirming that issues of personal loyalty and institutional trust matter to respondents, these results challenge assumptions that Australia is an “anti-dobbing” society, such as to have an overall culture that is hostile to whistleblowing. 9. The results tend to indicate that most Australians rely on whistleblowing, including to the media, as an important integrity measure for organisations in society 10.There is a large gap between citizens’ personal values and expectations, and the current Australian social, organisational and legal standards towards whistleblowing, as perceived by respondents: Despite strong support for whistleblowing, only 53% of adults see it as “generally acceptable” in Australian society for people to speak up about serious wrongdoing if it means revealing inside information Only 55% of employees or organisational members are confident that something appropriate would be done about wrongdoing if they reported it Only half (49%) of employees or organisational members polled see their management as serious about protecting people who report wrongdoing

Labaton Sucharow’s* 2 nd Annual Integrity Survey of the American Public: 2012 Ethics and Action Survey: Voices Carry [ [17Sep12] Ten Top Findings 54% of Americans have personally observed or have first-hand knowledge of wrongdoing in the workplace; 18% of Americans believe that their employer values bottom line profits more than ethical conduct; 64% of Americans polled believe that corporate misconduct was a significant factor in bringing about the current economic crisis; 81% of Americans do not believe the government has done enough to stop corporate wrongdoing; 77% of Americans believe politicians favor corporate interests over their constituents’ interests; 61% of Americans will significantly factor a candidate’s commitment to rooting out corporate wrongdoing in their voting decision in November; 63% of Americans believe government should allocate more dollars to financial regulators and law enforcement to combat corporate wrongdoing; 84% of Americans have a positive perception of whistleblowers that report illegal or unethical conduct; 24% of Americans would fear retaliation if they reported wrongdoing in the workplace and 20% believe that any report of wrongdoing would not be appropriately handled by their employer; and 83% of Americans would report wrongdoing with protections and incentives such as those offered by the SEC Whistleblower Program, but only 28% are aware of the new investor protection program. * Labaton Sucharow is a New York-based legal practice exclusively focused on protecting and advocating for whistleblowers who report possible violations of the (US) federal securities laws.

Securency and Note Printing Australia manufacture polymer banknotes. Allegations of widespread bribery and corruption at Securency and Note Printing Australia, both Reserve Bank of Australia (RBA) subsidiaries. Investigated by the AFP. Information from a whistleblower, who was subsequently “encouraged” to resign. Seven former employees charged. Role of senior officials in the RBA also under review. ABC Four Corners (24May10) claims Securency paid about Aus$50 million since 2003 in commissions to “shady foreign businessmen” who bribed central banking officials in Asia, Latin America and Africa to replace their paper banknotes with Securency’s polymer banknotes. Countries targeted included Indonesia, Nigeria, Malaysia, Vietnam, and Paraguay First conviction (SFO Securency) 18Jul12. The defendant will now give evidence against others defendants. Case now being heard in Federal Court, Melbourne. Was the Board of the RBA aware of this behaviour? If so, why did they not refer the matter to the AFP for investigation until after it attracted publicity? Under Australian corporations law, a company can be held liable for the actions of its employees and agents if it can be shown that its culture directed, encouraged or led to corrupt conduct. These actions appear, prima facie, to transgress Australia’s obligations as a states party to the OECD Convention on Combating Bribery of Foreign Public Officials, 1999.

Australia’s Witness Protection Program National Witness Protection Program (NWPP) operates under the Witness Protection Act, 1994 (Cth) and maintained by the Australian Federal Police Applies, in circumstances of threat or possible retribution, to: o Persons giving evidence for the Crown in criminal or proscribed cases o Persons who have given or agreed to give evidence in criminal cases o Persons who have made a statement in relation to an offence o Persons who may require protection or assistance for any other reason* o Persons who are related to or associated with such persons NWPP employs operating methods designed to ensure the safe integration of witnesses and their families in the community The Act contains regulatory mechanisms for maintaining the integrity of the NWPP Commissioner/AFP cooperates with State and Territory CoPs and CEO/Australian Crime Commission on the NWPP, and foreign LEA’s or the International Criminal Court, if requested * This category obviously includes whistleblowers

Australia’s Current Anti-Corruption Situation [Commonwealth Jurisdiction] Conventions OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1999 [Ratified by Australia in 1999] UN Convention Against Corruption, 2003 [Ratified by Australia in 2005] Australia (Cth) Criminal Code, 1995 Extra-territorial reach of Code in limited circumstances Code prohibit bribery/corruption of foreign public officials Facilitation payments permitted Limited criminal/civil fines, imprisonment and disgorgement of profits or turnover Whistleblower Legislation Public Interest Disclosure Bill has been under preparation for some five years! [The Commonwealth record on whistleblower protection leaves something to be desired.] Witness Protection Legislation Witness Protection Act 1994 (Cth) Anti-Corruption Bodies Australian Commission for Law Enforcement Integrity, 2007 (for Federal LEAs) Commonwealth ICAC-type body (not under consideration as yet) Other Initiatives National Anti-Corruption Plan under preparation (under our G20 obligations)