IN FOCUS
64
IN FOCUS
4. The threshold for protection should be consistent across the private and public sector and there should be no requirement that any whistleblower acts“ in good faith”. The motive of a whistleblower is irrelevant to the public interest in the disclosure of corporate misconduct. The focus should be on the veracity of the complaint, not upon the character of the complainant. Professor AJ Brown of Griffith University, Queensland and a leading expert on the subject, made the point in clear terms 2.
Motives are notoriously difficult to identify and may well change in the process of reporting, for example, when an internal disclosure is ignored or results in the worker suffering reprisals. Because it is such a subjective and openended requirement, the likely effect of a good faith test is negative – that workers simply choose not to report their suspicions about wrongdoing because they are unsure whether or how this test would be applied to their circumstances.
The proper tests are simply whether the disclosure is based on an honest belief, on reasonable grounds, that the information shows or tends to show defined wrongdoing.
5. In terms of how disclosable conduct should be reported, internally and / or externally, the Joint Committee recommended a tiered approach consisting of 3:
a. internal disclosure within an organization, which is safe and appropriate( including to a nominated hotline);
b. regulatory disclosure to the appropriate body or agency wherever a regulator exists to receive such complaints and an internal disclosure was:
i. unsafe or unviable;
ii. inappropriate as the organization was unlikely to act on it; and
iii. was made but did not lead to satisfactory action;
Protections for whistleblowers disclosing improper conduct is essential in targeting commercial crime, which is invariably hidden from the public eye. The reforms proposed in Australia are already the subject of a draft Bill( published by the Government on 23 October 2017) which are designed to substantially improve protections and impose severe sanctions for discriminating against whistleblowers in the private sector. These reforms are a great improvement in Australia and can act as a guide to where best practice reforms could apply in India and c. external disclosure where: i. there is a risk of serious harm or death; or
ii. a disclosure in the public interest has been made to an Australian law enforcement agency and after a reasonable length of time, no action has been taken by the agency.
6. Where there was any external reporting to a third party, those communications should be protected.
7. There should be provisions for and protections in favor of any individual whistleblower who sought to make an anonymous disclosure, subject to orders of a court that might be made in terms of the giving of admissible evidence. The Joint Committee recognized that the confidentiality of disclosures and of the identity of a whistleblower were paramount and anonymous reporting would bring the private sector in line with public sector protections 4.
8. There should be a comprehensive set of remedies, both civil and criminal, for any retaliation against a whistleblower, with sanctions ranging from significant fines to terms of imprisonment. The Joint Committee considered that 5:
Remedies, including compensation, should be determined by the level of detriment suffered by the whistleblower and that a whistleblower should be fully reassured for simply doing the right thing, without needing to have a financial motive.
In this context, the Joint Committee believed there should be a separation of the grounds for criminal and civil liability, distinguishing between the criminal offense of reprisal and the wide range of circumstances that might give rise to civil remedies for detrimental outcomes 6.
9. A reward system should be introduced in Australia. The proposed model would permit the Whistleblower Protection Agency( of which, see below), when imposing a penalty on a wrongdoer, to allocate a“ reward” to any relevant whistleblower as a proportion of the penalty
2
Joint Committee, Whistleblower Protections Report, Canberra, September 2017 at page 77. 3 Whistleblower Protections Report, pages 89 to 98. 4 See section 28( 2) Public Interest Disclosure Act 2013( Cth). 5 Whistleblower Protections Report at page 113. 6 Whistleblower Protections Report at page 121. 7 Whistleblower Protections Report at page 138. 8 Whistleblower Protections Report at page 143. 9 Whistleblower Protections Report at page 155. 10 Whistleblower Protections Report at page 157. 11 Whistleblower Protections Report at page 156. 12 https:// www2. deloitte. com / in / en / pages / finance / articles / whistleblower-protection-in-india. html.
November 2017 | Legal Era | www. legaleraonline. com