IN FOCUS
imposed on the employer. The range of a reward would
be determined by a court (or other body), taking into
account identified factors such as the extent to which
the disclosure led to the imposed penalty, the timeliness
of the disclosure, the extent of internal reporting lines,
whether a disclosure had been made internally and/or
externally with a lack of adequate response, the extent
of any compensation received by the whistleblower
and the overall conduct of the whistleblower. A cap on
the reward, together with the relevant criteria, would
mitigate the perceived negative consequences of a US-
style bounty system. On a reward scheme, the Joint
Committee said this 7 :
A reward system would motivate whistleblowers
to come forward with high quality information.
This information would otherwise be difficult to
obtain. The committee considers that a reward
system will motivate companies to improve internal
whistleblower reporting systems and to deal more
proactively with illegal behavior.
10.
An independent Whistleblower Protection Authority
should be established that had priority for the support
of whistleblowers, a statutory power to investigate
reprisals, the ability to undertake administrative
and/or civil proceedings and overall oversight of
implementation of the statutory whistleblower regime.
The current approach for the Australian public sector
was fragmented. In the private sector, ASIC (as the
corporate regulator) has been criticized in the media
as consistently failing to respond to whistleblowers.
Almost all submissions to the Joint Committee,
including from ASIC, recommended the creation of an
independent oversight agency for whistleblowers 8 .
The Joint Committee recognized, with some concern,
what it described as the “manifest and systemic power
imbalance” 9 between a whistleblower and an agency,
a department or an employer where any dispute arose
about a disclosure.
11. The Joint Committee considered that a Whistleblower
Protection Agency should be empowered to exercise the
following functions 10 :
a. Act as a clearing house for whistleblowers making
public interest disclosures;
b. Provide advice and assistance to whistleblowers;
and
c. Support and protect whistleblowers, including by:
i. Investigating non-criminal reprisals in public
and private sectors; and
ii. Taking non-criminal matters to court on behalf
of whistleblowers or on the Agency’s own motion
to remedy reprisals or detrimental outcomes.
12. The Joint Committee saw several benefits in having one
independent body to focus on whistleblowers. These
benefits included 11 :
a. Having independent investigations of alleged
reprisal activity across public and private sectors;
b. Avoid reprisal investigations being undertaken by
the agency whose conduct is under review;
c. Provide a consistent approach across public and
private sectors;
d. Alleviate the lack of specific requirements under the
Corporations Act to investigate reprisals; and
e. To allow ASIC and other regulators to investigate
serious misconduct revealed by the whistleblower.
13.
The Whistleblower Protection Authority should
submit annual reports to Parliament covering both
the public and private sectors in a consistent format
to facilitate comparison and an assessment of the
effectiveness of whistleblower protection laws across
both sectors.
Reflections on the Whistleblower
Protections Model
For many years, Australia has looked at whistleblowers
but has done very little to protect them. The Whistleblower
Protections Report is the most comprehensive review
of the laws covering the public and private sectors and
finally and unambiguously, lays bare the complete
inadequacy of whistleblower protections in the private
sector in Australia. While India has the Whistleblowers
Protection Act, 2014, which provides some protections in
relation to the disclosure of corruption, wilfull misuse
of power or discretion or a criminal offence by a public
servant, Indian law is silent on any protections for a
whistleblower in the private sector. An employee or any
individual is alone when a private sector whistle is blown.
This is not and indeed, cannot be healthy in India’s
campaign to target endemic corruption (in the public or
private sectors). The absence of any protections in India
in the private sector operate as a real disincentive to any
disclosure and in turn, promote an unhealthy sense of
entitlement and a lack of transparency and accountability
upon those who seek to act improperly and/or illegally.
According to Deloitte in India 12 :
There are enough instances of retaliation against
whistleblowers in corporations and government-driven
organizations including some where whistleblowers
are known to have lost their lives in their fight against
fraud and corruption.
The Australian Government as much as the Indian
Government, promote the virtues of tackling corruption and
corporate misconduct. Empowering and properly protecting
whistleblowers goes a long way to achieving those goals
consistent with the increasing demand of society to stamp
out corporate misconduct.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.
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