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Public interest whistleblowing

by Simon Longstaff

Introduction

Towards the end of 1991, Time magazine published an article about the experience of whistleblowers in Australia. As with any good headline the title of the cover story provided an eloquent and succinct summation of the issues. In this case the piece was entitled "Integrity and Ruined Lives". Amongst other things, the article is testimony to the courage of those honest individuals who have put their convictions before a concern for their personal wellbeing.

In many cases, the disclosures made by whistleblowers brought advantage to the community at large while at the same time resulting in loss to the individuals who saw fit to raise the alarm. It is curious that we praise the deeds of citizens who engage in acts of physical heroism yet tend to damn the morally courageous. The person who foils a bank robbery is widely applauded. Why then do so many of us shrink from the company of those who reveal corruption and mismanagement?

Any person familiar with the literature on whistleblowing will be aware of the Fitzgerald Report's comments on the matter. Fitzgerald's words bear repetition as they aptly describe the situation affecting those in both the private and public sectors. He said:

It is enormously frustrating and demoralising for conscientious and honest public servants to work in a department or instrumentality in which maladministration or misconduct is present or even tolerated or encouraged. It is extremely difficult for such officers to report their knowledge to those in authority.

Even if they do report their knowledge to a senior officer, that officer might be in a difficult position. There may be no-one that can be trusted with the information.

If either senior officers and/or politicians are involved in misconduct or corruption, the task of exposure becomes impossible for all but the exceptionally courageous or reckless, particularly after indications that such disclosures are not only unwelcome but attract retribution.

(Fitzgerald, 1989, p.134)

There is an important reason for beginning this submission with these observations. It is that, in discussing the issue of whistleblowing, there is a tendency to lose sight of the fact that our deliberations have a direct bearing on the welfare of individual human beings and, through them, on society at large. It is somewhat paradoxical that in developing systems and procedures that protect whistleblowers one can be seduced by the intellectual challenges of developing technique to such an extent that the human scale of the problem is lost from sight. For example, the New South Wales Parliament has, in the past year, had before it the Whistleblowers Protection Bill No. 2 (1992). The object of the Bill was expressed as follows:

The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and substantial waste in the public sector...

While one might readily recognise the public interest as partially defined in the Bill, it may be appropriate to ask if it is meant (in this case) that the protection of persons is only of secondary importance? There is a suggestion, in the NSW Bill, that the protection of persons is only as a means to securing the object of the legislation. In its submission to the Legislation Committee examining the Bill, the Centre suggested that the Object might be amended in order to indicate that the protection of persons is an end in itself.

The significance of this goes beyond the expression of a concern to ensure that the discussion is properly focused. Concentrating on the issues as matters of human concern also helps to reinforce an understanding that there is no one 'knock down' solution that can be applied to the issue of whistleblowing. The phenomenon of whistleblowing arises in a context which is imbued with the type of complexity that is apparent in any social construct. This context is largely defined by debates about topics such as fraud, corruption and mismanagement. To enter these debates is to become entangled in arguments concerning the bounds of loyalty, the political dimensions of accountability and the role of custom and practice in the definition of acceptable behaviour.

It may be helpful to envisage the issue of whistleblowing as one strand in a web of concerns. As such, the response to its challenges should be part of an integrated approach. As McMillan (1988) has argued, there is a need for multiple overlapping countermeasures in the control of fraud as well as other essentials including: a diverse media; freedom of information; and whistleblower protection.

One final comment by way of introduction. It is important to recognise that the response to whistleblowing presents challenges to both the private and public sectors. Whilst it is true that each sector has distinctive features which affect the definition of the problem, there is much to be said in favour of reflecting on the experiences of each. This is especially so as the processes of corporatisation and privatisation of the public sector continue to be applied throughout Australia. Of further significance is the intersection between the private and public sectors at points where the boundaries separating each entity can become blurred.

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A preliminary overview

Seeking a definition

Whilst most of us understand the term 'whistleblower' at an intuitive level, it is interesting to note that the term has, for some time, received closer attention in enquiries and legislation in North America. More recently, a similar desire to clarify the meaning of the term has been evident in documents originating in Australia such as Issues Paper No 10, "Protection of Whistleblowers", as issued by the Queensland Electoral and Administrative Review Commission (EARC). Research such as this has done much to eliminate the pejorative overtones that have traditionally been associated with the term. These days a typical definition of a whistleblower will be akin to that used in the United States' renowned statute the Civil Service Reform Act of 1978. This Act defines a whistleblower as an employee:

... who discloses information he reasonably believes evidences a violation of any law, rule, or regulation, or mismanagement, a gross waste of public funds, an abuse of authority, or a substantial or specific danger to public health or safety.

In an excellent and comprehensive article based on research funded by the Law Foundation of New South Wales, Starke (1991) reports that for general purposes, any definition of whistleblowing must include the following requirements:

1. a disclosure of information evidencing objectionable misconduct, not otherwise known or visible;
2. such disclosure is made in the reasonable belief that this information demonstrates that there had been such misconduct;
3. the person making the disclosure acts in good faith, without malice;
4. the disclosure is made in the public interest with a view to ensuring that the community has an effective civil service; and
5. the disclosure is not specifically prohibited by law, or considerations of national security or defence would not preclude it being made.

(Starke, 1991, p.210)

In an attempt to be even more specific, McMillan (1988) identifies a number of elements which will provide the common stock for definitions being:

• the whistleblower: a current or past employee of an organisation who makes accusations against that organisation;
• the recipient of the complaint: commonly some external body (such as the media, Parliament, or a public enquiry) but sometimes also an internal recipient (such as a more senior officer, or a special internal office created to receive such complaints);
• the complaint: normally that an organisation has practised, tolerated or bears responsibility for some illegal, immoral or unethical conduct which is likely to result in unnecessary harm to third parties; and
• the circumstances of the disclosure: which usually occurs in a way whereby the whistleblower (either intentionally or accidentally) is identified publicly with the complaint, and claims that the principle motive for the disclosure was to advance the public interest.

(McMillan, 1988, p.119)

Identifying some of the issues

Chapter 15 of the EARC Paper raises a number of key issues relating to society's response to whistleblowing. Although it will not be possible, in a paper such as this, to answer each of these questions in a systematic manner, it may be informative to list them. They are:

1. Should whistleblowers be protected?
2. Options for recognising and protecting whistleblowers.
3. In what areas of Government activity should whistleblowers be protected?
4. How should whistleblowers be protected?
5. To what bodies or persons is it legitimate to blow the whistle?
6. Subject-matter of disclosures.
7. The whistleblower's state of mind.
8. What rights and protections should a whistleblower enjoy?
9. Standard of proof that the agency would have taken retaliatory action of the same kind in the absence of the relevant whistleblowing disclosures.
10. Whether anonymous disclosures should be allowable.
11. Time limits.
12. False disclosures.
13. Should unjustified reprisals constitute a disciplinary or criminal offence.
14. Protection of whistleblowers in the private sector.

(EARC Paper, 1990, pp 85 et seq)

This submission will now examine the following issues:

• Establishing adequate reporting procedures
• Reducing the risk to whistleblowers
• The contradiction between expected loyalty and honesty
• Balancing obligations: individual, organisational and community
• Reacting to reports of wrongdoing
• Whether or not there should be an offence of wilfully making a disclosure which is false, misleading or malicious?
• The role of the media in whistleblower protection?

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Establishing adequate reporting procedures

There are many concerns expressed about the activity of whistleblowing. However, it is difficult to avoid the conclusion that much criticism is motivated by a reaction against what is seen to be a somewhat ad hoc approach to the reporting of unacceptable behaviour. Whistleblowers are frequently portrayed as well-meaning renegades, out of step with the majority in their concern to report wrongdoing.

One important way to alter such perceptions is to make the activity of reporting wrongdoing an integral part of the systems in place within an organisation. Many organisations are familiar with the need to ensure that financial reporting is accurate, comprehensive and regular. New standards of disclosure in prospectuses and as more generally required under rules being established by bodies such as the Australian Securities Commission and the Australian Stock Exchange all help to create a climate of expectation concerning the degree to which the intra and extramural flow of information in and about organisations is to be channelled.

Having said this, it is to be recognised that there would seem to be a considerable difference between financial reporting and the kind of reporting envisaged in cases of whistleblowing. After all, it is easy to argue that financial reporting and regimes of continuous disclosure are prudent mechanisms designed to ensure the proper operation of markets. However, it is exactly this type of observation that helps to focus attention on questions to do with the whole basis for establishing a reporting system for whistleblowers to utilise.

In designing any system it is important to have a clear understanding of the purposes to be served by the network. Whilst it may be fairly easy to specify the objectives for such a system in terms of efficiency and so on, the whole character of the design and execution of the system will be affected by the type of understanding which exists concerning the ends which it is designed to serve. For example, in the case of whistleblowing is the primary aim to report wrongdoing with a view to: prevention, the punishment of malefactors, the rehabilitation of malefactors, the saving of material resources, the preservation and promotion of a certain type of ethos and so on?

Naturally enough, these options are not mutually exclusive. However, degrees of emphasis may affect the formal structure for a reporting network. For example, if the primary concern is to prevent wrongdoing (as opposed, say, to punish wrongdoers) then there may be a greater emphasis on the need to establish internal lines for reporting. In such a case, whistleblowing would come to be seen as a diagnostic process akin to other more established forms of internal self-monitoring.

In this regard it is interesting to note that an article, published in Fortune, noted that some 200 major US corporations "have recently appointed ethics officers, usually senior managers of long experience, to serve as ombudsmen and encourage whistleblowing".

At the same time, it is important to recognise that there are a number of special factors which may apply in a way such that an exclusive reliance on internal lines of communication is neither possible nor desirable. Some activities that need to be reported may involve criminal actions. The treatment of matters criminal is a public process. At another level, it may be essential to supplement internal processes with an external framework. There may be extraordinary temptations which lead internal officers to ignore evidence of wrongdoing.

For example, issues raised by whistleblowers may be perceived as a relatively unimportant distraction when compared with other more immediate organisational objectives. This may be especially so if the individuals concerned are, in all other respects, good at what they do. Then there are matters that can arise when personal relationships are compromised or when to act on a report would be inconvenient or against ones broader interests.

Ideally, government departments and enterprises should voluntarily establish internal procedures for whistleblowers as a matter of best practice. Treating concerns within the organisation is to be preferred for a number of reasons. Perhaps the foremost of these is that internal procedures may form part of a strategy to remove the stigma associated with justifiable cases of whistleblowing.

All of this leads to some tentative conclusions concerning the general shape of an adequate and effective reporting structure:

• the aims of the structure should be made explicit. If the objectives are properly understood and endorsed then there will be a much better chance of achieving the desired end,
• the structure should resemble other networks within the organisation. This will help to encourage a sense that reporting serious wrongdoing is a normal part of the organisation's culture,
• whilst it may be desirable to have internal lines of communication, it is very important that there be an individual or unit whose chief (if not sole) responsibility is to handle the relevant reports. An adequate network must be headed by a person who has sufficient seniority to ensure that reports will be dealt with in an appropriate manner. Whistleblowers must have confidence in the internal system. Such confidence can easily be undermined if there is a perception that the responsible entity is subject to any form of 'operational' conflict of interest. This can happen when cost restraints mean that the responsible entity is required to fulfil a number of other duties which involve a blurring of lines of responsibility and so on,
• given the difficulty of establishing entirely dependable lines of communication, it may be wise to sanction the use of external lines in circumstances where there are sufficient grounds for believing that the internal structure is inadequate.

Having said this, there will be organisations in both the public and the private sectors that would best be served by contracting with an independent third party who could act as an initial point of contact for persons seeking to express concerns. In some cases this will only need to be a temporary expedient. However, in circumstances where the level of trust is low and where communication is poor, or where 'right sizing' has led to a reduction in staff, then the benefits of an outside agency may be more lasting.

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Our Ethics Counselling service

Of equal importance may be the need for government to develop some mechanism by which potential whistleblowers can obtain confidential counselling from an independent body. Whistleblowers are frequently in need of an independent point of assessment that they might refer to for support when trying to determine both the seriousness and validity of their concerns. It should therefore be noted, in passing, that St James Ethics Centre offers, as one of its primary services, a free, confidential Ethics Counselling service for people who encounter an ethical dilemma and seek assistance in its resolution.

This service has been available since 1991 and is used by people in both the private and the public sectors throughout Australia. Given the need to expand the service in a judicious manner, the availability of the service has only been advertised through a series of strategic alliances, for example, in collaboration with the Australian Society of CPAs and the Royal Institute of Public Administration Australia (NSW Division). However, it is anticipated that there will be a fairly substantial increase in the availability of this service during the course of 1994.

The Centre's ethics counselling service is not specifically designed to accommodate the concerns of whistleblowers. However, there may be good reasons for the Centre seeking to play a greater role as an independent body capable of rendering assistance.

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Reducing the risk to whistleblowers

That which has been outlined above presupposes that potential whistleblowers are going to be confident enough to use a system of reporting (with or without an internal reporting component), as opposed to an ad hoc arrangement in which their interests may be better protected (albeit in a minimal way). Such a presupposition can only be made if there is a guarantee of protection for those who come forward with information of wrongdoing. Whilst legislation to protect whistleblowers from retribution may not be sufficient it is nonetheless necessary if any framework for reporting is to be effective. As noted below, Professor Paul Finn has argued that the range of interests to be protected in cases of whistleblowing goes beyond those of the person making the report. Any system of legislation will need to acknowledge this broader range of interests.

Starke (1991) cites work done on the issue of whistleblowing by Professor Paul Finn, of the Australian National University, in his Working Paper entitled Secrecy, Dissent and Whistleblowing: A Reporting Scheme. As summarised by Starke these interests include:

1. The interests of the person or persons impugned in the report or complaint.
2. The interests of the reporter. Except where the reporter is a senior/supervising officer performing a duty to export the misconduct of subordinates:

   it is desirable that the anonymity of the reporter be maintained until that point is reached in consequential investigation where revelation of the reporter's identity is necessary (if at all) so as to accord due process to 'the accused'

3. The interests of the agency. Here there is a need to minimise the disruption occasioned by the report.
4. The interests of the public

(Starke, 1991, p.256)

The need to recognise a variety of interests is especially important when it is realised that whistleblowing activities do not always result in overly beneficial results. As Neilsen (1989) has observed, when describing what he terms "forcing strategies", there are a number of risks and limitations that may affect the outcome. Ryan (1991) summarises the factors thus:

The individual who is taking action may have insufficient information or experience. Sound co-operative relationships in the organisation can be unduly damaged..."using force can contribute to an atmosphere or belief culture that the only way to get things done is through force' - a prescription for chronic distrust and tension

As noted above, it would be a mistake to think that whistleblowing, as a 'forcing strategy", exhausts the opportunities for making an appropriate response to wrongdoing.

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Should there be statutory protection for whistleblowers?

Commonwealth Parliament and each of the State Parliaments should legislate to protect bona fide whistleblowers. The legislation should have both 'positive' and 'negative' elements.

On the 'positive' side, the legislation might:

• Recognise the role of bona fide whistleblowers,
• Promote the establishment of 'internal' mechanisms by which relevant issues of concern might be reported and addressed ( such a mechanism might include contracting with an independent organisation to act as an initial point of contact, thereby helping to protect potential whistleblowers from recrimination),
• Define the conditions under which a disclosure might be protected (eg. will a disclosure be protected if subsequently reported to the media?) and any principles / prohibitions relating to the maintenance of confidentiality,
• Establish a framework to ensure that those subject to complaint or allegations are treated according to principles of natural justice,
• Nominate appropriate official bodies to which 'protected disclosures' might be made (eg. the Auditor General, Reserve Bank, or establish a new body to investigate claims by whistleblowers,
• Limit the application of the laws of defamation in cases where 'protected disclosures' are made.

On the 'negative' side, the legislation might:

• Create an offence of engaging in acts of recrimination against a bona fide whistleblower,
• Fix penalties for such an offence.

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Who should be protected?

It was argued above that the distinction between the public and the private sectors is becoming increasingly blurred. This is not just an effect of a changing perception of the role of the public sector. There is also a greater awareness of the dynamics affecting the relationships between each sector. This point has particular significance when attempting to determine the extent to which whistleblower protection measures ought to be extended to people operating in the private sector. This matter was addressed by the Centre in its submission to the Legislation Committee of the NSW Parliament examining the Whistleblowers Protection Bill No. 2 (1992). It was argued that:

1. It is not only public officials who might suspect or uncover examples of corrupt conduct, maladministration and substantial waste in the public sector.
2. Furthermore, persons other than public officials may be subject to recriminations for making disclosures to investigating authorities.

As a purely hypothetical example, let it be imagined that an employee of a private sector construction company uncovers corrupt conduct in the management of a government tendering process. Suppose that the result of the employee's disclosure is that the government saves millions of dollars, the corrupt practice is identified and curtailed and the whistleblower's employer loses a contract that would otherwise have been awarded. One can imagine a situation in which the whistleblower might be subject to recriminations from the employer. Why should a citizen not be afforded protection under the provisions of the Bill if that person has disclosed information that helps to uncover examples of corruption, maladministration or substantial waste in the public sector?

It is accepted that some may feel uneasy about extending the force of this legislation so that it affects the legal relationship between employers and employees in the private sector. However, the scope of the Bill (as then drafted) already anticipated a limited extension in this direction in that s. 8. (3) states that:

A disclosure made while a person was a public official is protected by this Act even if the person who made it is no longer a public official.

This section was then read in conjunction with s. 16. (1):

A person who takes detrimental action against another person that is substantially in reprisal for the other person making a protected disclosure is guilty of an offence. (my highlighting)

It is significant that the offence created by s. 16. (1) could be committed by any person. Thus one could envisage a situation in which a former public official was working in the private sector only to be threatened with dismissal (or some other form of reprisal) because the employer had discovered that the individual had a history of whistleblowing (a practice that the employer, for whatever reason, may have come to despise). In such circumstances the Act would have offered protection. In doing so it would introduce a new dimension into the relationship between employers and employees in the private sector.

There is also the potential case of whistleblowers who report wrongdoing by individuals and organisations in the private sector to Commonwealth regulatory authorities. One can imagine a situation in which such persons would also be subject to recriminations. It is at this point that one encounters the full force of the objection that legislation to protect whistleblowers interferes with the relationship between employers and employees in such a way as to cause a significant conflict of duties. One can only reply that the community has a particular interest in ensuring that its laws are upheld and that no relationship of employer to employee is such that it should anticipate either party having to remain silent in the face of evidence of illegality.

Having said this, it has been argued above that it is preferable for potential whistleblowers to utilise 'internal' procedures (including reference to an independent third party) for resolving concerns. If the use of these procedures is ineffective or if their use gives rise to recriminations, then the whistleblower should enjoy protection under the legislation. Furthermore, those who harm the interests of bona fide whistleblowers should be subject to penalties imposed under the law.

Bearing this in mind, it is submitted that:

1. Protection should be accorded to:
   1. any person who, in the public interest, discloses maladministration, corruption, impropriety, substantial waste or acts that a reasonable person would believe to involve danger to public health, safety or national security within the Commonwealth government or one of its agencies, or
   2. any person who, in the public interest, discloses illegal actions by persons or organisations subject to the jurisdiction of Commonwealth regulatory, investigating or prosecuting authorities.
2. Protection should not be accorded to any person who:
   1. except when under a statutory obligation to do so, by-passes 'internal' reporting procedures despite there being reasonable grounds to believe that the application of these procedures would lead to an appropriate resolution of the matter, or
   2. where the disclosure was made frivolously, vexatiously or not in good faith.

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Some general considerations

Much of the above assumes that there will be some sort of internal system of reporting. It remains to be said that this need not be so. Bodies such as the Independent Commission Against Corruption in New South Wales, the Queensland Criminal Justice Commission and the Office of Special Counsel in the United States all provide initial points of contact and have 'original' jurisdiction in the investigation of relevant reports of wrongdoing. That is, reports can be made to such bodies without recourse to any internal mechanisms for handling such issues.

It is important to realise that internal and external lines of communication in these matters can and should be mutually reinforcing. Internal conflicts and other such matters can hamper the effectiveness of internal structures. Hence the importance of having an entirely independent body with the powers sufficient to command confidence. However, exclusive reliance on an external body may inadvertently lead to a reinforcement of prejudices concerning the status of whistleblowers. That is, reporting wrongdoing will fail to be seen as a 'diagnostic' tool that is applied within organisations.

This is to suggest that the ideal framework is likely to include a combination of internal and external reporting regimes. However, this state of affairs will necessitate the creation of guidelines that help to differentiate between circumstances when it is appropriate to utilise internal mechanisms and those when recourse should be had to an external agency. It will not be possible in this submission to outline the kinds of considerations that may apply.

Over and above considerations pertaining to whether or not one should utilise internal or external reporting lines are those pertaining to whether or not the whistleblower should 'go public". There would seem to be a consensus of opinion that in circumstances where public exposure can be justified by an overwhelming and immediate concern for the public interest, such as when public safety may be at risk or when there is no other alternative. This is also to recognise that a free and responsible media has an important role to play in uncovering and reporting on wrongdoing. These and related matters are examined in a separate section below.

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Should there be a duty to report wrongdoing?

There is the question of whether or not there should be a positive duty to report wrongdoing. It may be worth noting that many corporations have now introduced Codes of Business Conduct. The Code of one such company, Coca-Cola Amatil has the following provisions:

Each employee shall be alert to any action or omission in connection with his or her work which might constitute a violation of this Code, shall attempt to prevent Code violations and shall take prompt corrective action necessary to remedy and prevent any recurring violation of this Code. Where personal corrective action is not possible or practicable, the employee should immediately bring the matter to the attention of his or her supervisor, the functional Executive Director or the Managing Director.

It goes on:

Any failure by an employee to report a Code violation in accordance with this Code section shall itself constitute a Code violation.

(Coca-Cola Amatil, 1991, pp 20 & 22)

In a similar fashion, legislative provisions such as section 11 of the Independent Commission Against Corruption Act (NSW) impose duties on certain officers to report incidences of suspected corruption.

Whether or not one looks to a formal legal framework for establishing the grounds for reporting misconduct or rely on internal codes, there seems to be acceptance of the principle that serious cases of wrongdoing should be brought to the attention of those who can rectify the situation. That there is a prima facie duty to report such behaviour is evidenced by a long tradition, stretching back to at least medieval times, which recognises a degree of mutual responsibility for that which our compatriots do. Whether it be in the offence of misprision of felony or in a more general sense of culpability, there remains a sense that there is something fundamentally unjust about a situation in which silence leads to success for the guilty.

Of course, part of the solution to this problem involves a recognition of the fact that silence can be the child of many fathers. Fear of the consequences can breed silence. Confusion as to the proper course of action can be a similar dampener to action. However, it is especially important to realise that in many cases silence is the result of a general feeling that the type of behaviour considered to be wrong by some is, in fact, perfectly acceptable. It is not that people holding such views have an underdeveloped moral sense. Rather, it can be that the weight of custom and practice blinds them to what would otherwise be a straightforward assessment of wrong behaviour. Such custom and practice is formed by habits of lifetimes and sometimes of generations. The illusion that 'everybody' does it, or that 'it's harmless' or that 'he's a good bloke' obscures the fact that willing silence often allows the continuation of a situation that ultimately harms the innocent as well as the guilty.

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The contradiction between expected loyalty and honesty and balancing obligations

It is sometimes suggested that there is a conflict between loyalty and honesty. Looked at in one type of light this would seem to be true. Loyalty amongst conspirators and thieves may be a valued commodity. However, to speak in such terms is precisely to expose the fact that 'loyalty' based on a preference for self-serving dishonest behaviour is a pale imitation of the real thing. It is a soiled brand. Loyalty depends on a capacity to trust one another. Trust cannot be founded on the shifting sand of lies and dishonest behaviour. Beyond this, we have an intuitive sense that loyalty is something owed to a deserving object. Even where loyalty is thought to be owed to an office (such as a commander-in-chief of the armed forces) there is provision made for circumstances where the individual holding that office is corrupt. The power of impeachment represents a recognition of the fact that an office can be demeaned by its holder.

Loyalty cannot afford to be blind any more than people can afford to remain silent in the face of wrongdoing. Here in Australia the 'dobber' has been especially reviled. Those who dob are thought to have betrayed the canons of ‘mateship’. Such views are anathema to the true ideal of ‘mateship’. This ideal was born out of the necessity of relying on one another in difficult circumstances. There is no injunction stating that a person should tolerate the parasitical behaviour of the corrupt. A true mate would never place a friend in jeopardy simply for the sake of securing some selfish objective. The ideal of mateship arose in a context where small bands of individuals formed small societies based on the principles of mutual and self help. It is something of a pity that the ideal has been debased as society has grown in size and complexity.

Loyalty often demands the exercise of courage. Such courage may need to be manifested in the form of moral courage. In turn this may involve a decision to promote honesty as a true test of loyalty to those who deserve its application. As noted above, whistleblowing does not have to be part of a scheme of retribution against miscreants. Whistleblowing is as much about society, in its various forms, protecting itself from avoidable harm. It is also one part of a chain of actions that may lead dishonest individuals to recognise the harm that they do to others and ultimately to themselves.

The chief point to be realised in all of this is that the phenomenon of whistleblowing is representative of peoples' reaction to complex social problems that require equally complex and integrated responses. The type of response to be made will be guided by policies and attitudes concerning the relative seriousness of different forms of wrongdoing. A general climate of opinion is likely to affect the tenor of specific responses. Hence, it is important that clear standards be established to govern the appropriate response to reports of wrongdoing.

Whilst there can be no guarantees in such matters, it is likely that schemes for the protection of whistleblowers will be enhanced if seen as being part of a wider concern that looks to the welfare of all concerned. The strength of Paul Finn's comprehensive list of interests lies in the fact that collateral effects are taken into account. The wisdom and dare it be said, humanity of this approach has been recognised in the practice of the Department of Defence which has been pioneering responses to issues of fraud ethics and accountability as part of its awareness campaign. It is significant that the Department has taken a special interest in the need to assist people who have suffered incidental or direct harm as a result of an investigation (in all its various phases).

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Reacting to reports of wrongdoing

A concern for the wellbeing of all concerned will lead to certain tendencies being evident in the response to reports of wrongdoing. As indicated above, such a response will have the following characteristics:

• the response will be objective,
• any investigation will be thorough while seeking to minimise delay in the resolution of the matter,
• where possible, procedures employed will be non-coercive and non-threatening.

There are bound to be other factors that could be drawn from the discussion so far. To the extent that any other matter should be considered, it will owe its place in the discussion to the fact that it contributes to the achievement of a just solution. That is, to a solution that is fair to all concerned.

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Should it be an offence to wilfully make a disclosure which is false, misleading or malicious?

There are a number of principles that might be borne in mind when considering this question:

• It is important that the rights of persons subject to allegations of corruption, maladministration or substantial wastefulness be protected. Even if subsequently found to be without fault, those subject to allegations can suffer considerable (and sometimes irreparable) harm as a result of the investigation process. For example, there is the stress involved with being the subject of an investigation and also the hazard associated with the 'common' perception that "mud sticks' and "where there's smoke, there's fire". In normal circumstances, a person might recover damages by suing for defamation. And this remedy remains for those who suffer this mischief as a result the airing of disclosures that are not protected (for example, those that are not made in good faith). However, this remedy is not available where the disclosure is protected.
• A second point is that the community should be protected from having to bear the expense associated with the waste of resources that might be deployed in the investigation of disclosures that have no foundation and which are made by those who are frivolous or malicious.
• A third point is that while the rights of individuals ought to be protected and the public purse preserved, it would be unfortunate if any legislative response included provisions likely to dissuade genuine whistleblowers from making disclosures. Given the presumption of innocence and the standard of proof required in criminal matters, it is likely to be extremely difficult to secure a conviction for an offence of wilfully making a disclosure which is false, misleading or malicious. As such there should, theoretically, be little deterrent effect on those who would make protected disclosures in good faith. But in practice, people may be frightened by the prospect of making an innocent error only to be charged with an offence.

On balance, it may be preferable to exclude any provision creating such an offence and instead rely on civil remedies that continue to be available where disclosures are not protected, for example where it is judged to be the case that a whistleblower's disclosure was made frivolously, vexatiously or not in good faith.

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The role of the media in whistleblower protection?

The media is almost certain to play a role in uncovering and reporting on cases where a person commits the offence of taking detrimental action against another person making a protected disclosure. As such, the media would be taking a positive stance in the task of whistleblower protection.

The media's role in investigating and reporting on such matters would be no different to that which currently applies when it uncovers any other type of offence. In a similar way, the media would be bound to apply its normal standards in the coverage of any prosecutions that might arise following a disclosure by a whistleblower.

There is, however, the broader question of the media's role in respect of protected disclosures themselves. That is, should a bona fide whistleblower be protected under an Act of Parliament if he or she subsequently discloses information to the media for publication?

In considering the broader question the following points might be made:

1. In general terms the public has an interest in the media reporting on examples of corruption, maladministration and substantial waste in the public sector. As Professor Paul Finn has observed:

It is important both that the public be made aware of serious instances of maladministration and misconduct and that the public be reassured that allegations are properly investigated and where substantiated are remedied appropriate. (Finn, 1991)

2. This, in itself, forms part of the argument for whistleblower protection. However, it also suggests that there is an important role for the media in reporting on such matters.
3. However, Finn's point gives no guidance as to when the media should report the process. The public's interest in being informed may be best served if the media only reports on the results of completed investigations. This would help to ensure that no innocent party was tried and convicted in the court of public opinion. As noted above, the damage done can be irreparable.

One would hope that a responsible media would maintain a proper balance in such matters and, even under a voluntary code, refrain from reporting information that would harm individuals without necessarily advancing the public's interest. For example, does the public need to know the details of the continuing but incomplete investigations and proceedings of the 'investigating authorities' ? Such a decision is already made by those who regulate the reporting of the deliberations of various courts, commissions and tribunals. Indeed, this suggests that where 'investigating authorities' do not yet have guidelines for determining whether proceedings should be open or closed to the public, then they should be developed.

Having said this, it may be that circumstances will arise where it is essential that the public be informed immediately of the allegations made by a whistleblower. The Electoral and Administrative Reform Commission in Queensland (EARC) is reported to have taken the view that whistleblowers should not be protected after disclosing information to the media except where:

there is a serious, specific and immediate danger to the health or safety of the public.

Some argue that, except in circumstances such as those outlined above, a whistleblower who goes to the media should 'wear the consequences' of that decision. The thought behind this seems to be that providing that the investigating authorities are competent, then a whistleblower should share exposure to some of the 'hazards' flowing from a fully public disclosure.

The public interest is served, in part, by the ability of the media to help to ensure that matters of concern are given proper attention and to act as an additional 'safety-net' lest important matters be set aside because of an erroneous exercise of administrative fiat, say, within an "investigating authority". At the same time it is important that society trust those of its public institutions charged with responsibility for investigating protected disclosures. It is, as always, a question of balance.

To summarise then:

1. It is essential to the public interest that a free press be able be able to publish details of corruption, maladministration and substantial waste in the public sector.
2. It is equally important that reports not be published where the harm to an individual or group outweighs the benefit to the public interest flowing from publication.
3. The public interest is always paramount in cases where specific and immediate danger is imminent.
4. It is therefore an open question as to whether or not a protected disclosure should continue to enjoy protection if subsequently disclosed to the media.

Bearing in mind these principles the Committee's attention is drawn to the discussion and subsequent recommendations presented in the Finn Working Paper as referred to above. These are as follows:

1. Notwithstanding any duty of secrecy to the contrary, it should be lawful for a public officer or employee or an officer or an employee of a State owned company [or any person under the Centre's recommendations]:
   1. to make a (confidential?) report to a parliamentary committee of any matter which could have been reported 'in house' or to an independent agency [investigating authority under any Whistleblowers Protection Bill]
   2. where that parliamentary committee has undertaken an inquiry into a matter in relation to which that report would be a relevant consideration.
2. A reporter who fails to or refuses to avail of established reporting procedures but who 'goes public', will nonetheless be entitled to the protection of anti-reprisal procedures including immunity from criminal prosecution if, and only if, that person can show:
   1. that he or she had reasonable grounds for believing that the report made was true;
   2. that the allegation made has been found to be substantially accurate in the event; and
   3. that notwithstanding his or her failure to avail of well established procedures, the course taken was excusable in the circumstances [for example, where there is imminent danger or where an investigating authority has shown unreasonable delay in taking any action].

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Conclusion

There is no denying that whistleblowers face a dilemma in determining whether or not to draw attention to matters which so trouble their consciences that they feel bound to expose themselves and others to censure. From one point of view whistleblowing might be regarded as evidence of failure. On such an account the finger of blame could point in many directions: at organisations which have tolerated intolerable behaviour; at individuals who have put private advantage above the interests of all others, to whole groups of people whose custom and practice have left them blind to corruption and to others who, through apathy, fear, prudence or whatever have failed to accept responsibility for saying no to harmful attitudes and behaviour.

Yet, at another level, whistleblowing may be seen as a triumph of unsettling proportions. It is, perhaps. a little startling to see people willing to risk opprobrium by following the dictates of their consciences. It is even more unsettling to realise that they are motivated by values to which we subscribe, albeit in private.

The challenge is to erect structures that allow light to penetrate the veil of maladministration and, at its worse, corruption. Such a structure will need to build using existing resources such as: the common law, various codes affecting the professions, the media and so on. However, the foundation will have to be a general feeling, within the community, that various corrupt practices must be stopped because they are wrong! People are starting to realise that unethical behaviour causes harm not only at the level of the hip-pocket nerve. They are also coming to see that a corrupt society is harmed in less obvious but nonetheless tangible respects. All of this may lead to a growing sense that integrity should be 'rewarded' with something other and better than a ruined life.

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