After a long gestation, Corporations Act amendments set to be introduced by the Morrison government this week could be the first step to a whole new level of whistleblower protection – if they can get priority in our volatile, pre-election parliament.
Whistleblower protection featured prominently in last week’s debate over a new national integrity commission. It’s especially topical given the role played by whistleblowers like Jeff Morris in uncovering the wrongdoing at the Banking Royal Commission.
And last week, as well, the role of James Shelton and Brian Hood could be told. These were the managers who stepped up to reveal appalling foreign bribery by Australia’s Reserve Bank-owned companies, Securency and Note Printing Australia – our biggest and worst corruption scandal.
So the Government’s amendments to overhaul protections for corporate employees – nutted out with South Australian Centre Alliance Senator Rex Patrick – could not come at a better time.
For the media, and for corporate accountability, the big breakthrough is wider rules for when employees will retain the new, stronger legal protections even if they go to journalists.
Previous plans to limit this to extreme, unlikely emergencies have been shelved. Instead, if employees blow the whistle at least to a regulator, and nothing is happening in 90 days, it’s relatively simple for them to go public.
There are some hoops to go through, and time will tell if they’re still too tight. But this is Australia’s most powerful driver yet, not just for companies to improve their culture and compliance, but for federal law enforcement agencies and regulators like the Australian Federal Police, ASIC and APRA to change their previous lax ways.
A second big step is no shock to companies already putting in place better whistleblowing policies.
Now, companies face the world’s first ever requirement to not simply have a policy ‘on paper’, but spell out exactly how they plan to “support and protect” those who speak up, before anyone starts taking out reprisals.
Again, it’s a huge, culture-changing step. Many companies are quite good at getting their employees to reveal wrongdoing, so they can deal with it themselves. Where they fall down is in making sure their people don’t come off second-best, or worse, as a result.
With new requirements and a lot of new research on what to do, including from our own Whistling While They Work 2 project, that can change.
Third, the amendments start to fix the problem that until now, only deliberate, direct criminal “victimisation” of whistleblowers could ever be punished – something that’s almost impossible to prove and, consequently, never has been.
Now, any “detrimental” acts or omissions can result in an employer’s liability for compensation, including a failure to prevent such impacts, such as by having no protection policy or failing to implement it.
This is also a world-first, building on new rules championed by the Nick Xenophon team and imposed on unions after the 2016 election but, now, as promised by the Turnbull government, rolled out to employers themselves.
There are devils in the detail. It’s still likely to be tough for whistleblowers to activate these rights, which will have to be tested out in the courts.
Part of the answer to that is still a whistleblower protection authority, which everyone agrees is also needed.
A properly resourced agency was recommended by last year’s unanimous report of the Joint Parliamentary Committee on Corporations, and features in the cross-bench proposals for a national integrity commission, tabled last week. The Government is yet to respond.
Even The Australian, in its editorial last week, agreed whistleblower protection has to be a top priority in the design of a federal anti-corruption agency.
And with these new corporate rules on the table, it’s even clearer how out-of-date our public sector whistleblower protections have become.
But with these new rules, there is a new fighting chance for whistleblowers, and for corporate transparency and accountability to actually take hold. Whether with improvements or not, if they can get through this week, these laws will be one of the best legacies of the 2016-2017 federal parliament.
A J Brown is professor of public policy and law at Griffith University, and a board member of Transparency International in Australia and globally. He was a member of the Commonwealth Government’s expert advisory panel on whistleblower protection.
Read more about recently released results from the Whistling While They Work 2 project here.