Draft Action Plan: Whistleblower Protections-What you had to say
The published submissions on the Draft National Action Plan for Consultation:
Draft Commitment 1.1 Improve whistle-blower protections in the tax and corporate sectors
( This commitment covers a moving target- the government in the early hours of yesterday morning agreed to act on broader whistleblower protections – action advocated in submissions on this draft commitment.
“The amendments from crossbenchers Senator Hinch and Senator Xenophon would protect whistleblowers in both the public and private sectors and provide for compensation.
“These amendments, if passed, will see Australia go from some of the worst whistleblower protection laws in the world to arguably the best,” Senator Xenophon said during the debate.)
Justin Warren PivotNine (consultancy)
The broad objective is not reflected in the milestones – these appear to entirely focus on the area of tax. Whistle-blower protections should extend to those covering any form of corporate wrongdoing, not merely those relating to tax.
Angus King
Switched on Solar! Supports the prevention of tax evasion or avoidance, corruption, waste and fraud.
Jack Mahoney OGP Support Unit
Should be explicit if milestone 2 will inform milestones 1 and 3 in any way. Milestone 2 could also be more specific – what will consultation entail? What is the scope? What processes will the outcomes inform?
Not clear if the scope of corporate whistle-blowing under this commitment extends only to tax matters or to whistle-blowing on all types of corporate wrongdoings. Milestone on consultation doesn’t explicitly reference the commitment description. Also, is it all types of tax-related whistle-blowing?
Jose Marin OGP Anti-Corruption Working Group
Innovative and timely commitment (the anti-corruption agenda is expanding to incorporate fiscal misconduct as a conduit for grand corruption). Potentially transformative impact.
Michael Croker Chartered Accountants Australia and New Zealand
Would like to offer assistance with the formulation of exposure drafts for consultation.
Steering Committee of the Australian Open Government Partnership Network
Protections should go beyond tax issues and extend to those who help to disclose corporation corruption and malpractice. The commitment only includes consultation regarding ‘corporate sector protections’.
Commitment statement should read: “We will ensure appropriate protections are in place for people who report tax evasion or avoidance, corruption, waste, fraud and misconduct within the corporate sector”.
Status quo should be updated following first survey from the Whistle While They Work Project – which confirms “the burning need for comprehensive but well-informed reform of the nation’s whistleblowing laws.”
Should also include steps to encourage SA, NT and QLD that do not have explicit shield laws for journalists to protect whistleblowers that disclose via the media.
Karen Burgess The BubbleGum Club
There needs to be a commitment to deepen protections for whistle-blowers, including: employment, wage and superannuation entitlements, access to fair and equally justice services, and access to compensation for losses as a result of whistleblowing.
Would like to see the False Claims Act legislated in Australia.
Jessie Cato Publish What You Pay
Fully supports.
Dr Madeleine Roberts
It is clear that government departments can choose to ignore any warnings they receive regarding unscrupulous companies – regardless of whistle-blower protections, those responsible for running government departments should be penalised where they do not investigate warnings of this nature.
Should include an offence to attempt to identify or investigate the source of a disclosure – with very narrow and well-defined exemptions where absolutely necessary.
One obvious way to protect whistle-blowers/reduce the need for whistleblowers would be to open all government records to scrutiny.
Peter Cross United Voices for People with Disabilities
Whistle-blower protections do not go far enough. Supports a False Claims Act in Australia.
Stan van de Wiel Individual
Does not protect against whistleblowing by a private citizen or business on a public service entity in particular, agencies with massive policing powers.
Evelyn Doyle Individual (2)
• Stronger whistleblower protection laws are required to ensure that people are protected when making disclosures in the public interest. We have seen over time cases where the whistleblower has been charged or faced dismissal while the object of the disclosure continues unabated. The Freya Newman, Andrew Wilkie and Alan Kessing cases and more globally, Lux Leaks are examples.
• Foster a pro-disclosure culture within agencies – this could be done as part of the workshops on FOI mentioned earlier.
• Remove the pressure to disclose first within agencies but rather allow a separate body (Ombudsman) to receive and act on disclosures in cooperation with law enforcement if necessary. This is the only real way to protect the whistleblower both from losing their job or their mental health.
• Encourage whistleblowers within government and corporations to come forward to reveal unethical or corrupt practices by using inducements. This is a practice adopted elsewhere.
Peter Bennett Individual
The Plan lacks an account of how corruption is able to flourish when there are rules and legislation to prevent it. Should include prevention measures not justresponse measures. If corruption exists in any organisation it is a public right and it is in the public interest that that corruption be publicly disclosed.
Following issues are not properly addressed in the plan:
– failure to establish high cultural standards and regulation thereof within organisations.
– failure to expose the hypocrisy between the stated cultural objectives and the practice of those objectives.
– failure to appreciate the value of whistleblowing at a cultural and organisational level.
– restricting whistleblowing down to tax and corporate wrongdoing.
– bias towards protecting organisations at the expense of protecting whistleblowers and the public interest.
– the backhand denigration of whistleblowers by legislatively labelling them “disclosers”.
– the clear governmental opposition to integrity/investigative bodies.
– the public right to information about fraud, corruption or wrongdoing that harms or may harm the public interest.
– lack of support, legislative protection and restitution that must be provided to whistleblowers.
– lack of effective legislation to deter, detect and penalise fraud, corruption or wrongdoing that harms the public interest.
Protection under most whistleblowing legislation is restricted to employees. Other observers of wrongdoing are not covered by the protection provisions of whistleblowing legislation.
Paul Murphy Media, Entertainment and Arts Alliance
Need for genuine, substantial whistleblower protections (particularly given the increasingly harsh penalties for disclosures of information that punish the whistleblower and go after the journalists who work with them –not least by secretly using metadata retention to pursue journalists’ confidential sources);
Natasha Molt Law Council of Australia
Welcomes Commitment 1.1 to improve protections for whistle-blowers in the private sector. There should be a review of corporate whistle-blowing laws including compensation generally, not just in relation to tax misconduct.
Phil Newman TI Australia
Suggest: “We will institute worlds-best-practice whistleblower protections for people who disclose information about corporate and tax misconduct to the ATO, ASIC and other Australian corporate regulators. We will also implement other reform options…”
A J Brown Griffith University
• Include more specific commitments for the process and timing that will lead to legislative reform (i.e. milestones for the development, public release and introduction of legislation).
• Reference the work of the Senate Economics Committee – in particular its June 2014 report on the Performance of ASIC – and indicate the Government’s acceptance of the Committee’s recommendations for proceeding on this issue (previously only ‘Noted’).
• Outline a concrete consultation process which reflects, and includes, strong participation from the full range of stakeholders on this issue.
• Include milestones for that consultation which recognise the advantages of taking account of further, main results from the WWTW2 Project, prior to options being finalised and decisions made. These results will only begin to become publicly available in the second half of calender year 2017.
• Cease to adopt the goal and language of ‘harmonisation’ of private and not-for-profit whistleblowing regulation with the Public Interest Disclosure Act 2013 (Cth).
• A comprehensive approach is needed which recognises the intersections between regulation, compliance and workplace relations law across different areas of business life, in particular if compliance burdens on business are not to be increased by piecemeal and ad hoc approaches.
• The goal of reform should be a world’s best practice regulatory regime for incentivising and protecting the role of whistleblowing in corporate governance and good government.
Mel Flanagan Nook Studios
Should be more specific about what funds / resources have already been allocated and what else is required to implement.