Blow the whistle, break the silence: How organisations can promote a culture of transparency
20 August 2024
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Whistleblowing is on the national agenda.
In late 2023, the Attorney-General’s Department undertook a Stage 2 consultation of public sector whistleblowing reforms. The consultation revived calls for an overhaul of the Public Interest Disclosure Act, which was previously described as “technical, obtuse and intractable” by Justice John Griffiths[1].
Meanwhile, in the private sector, draft rules under the Aged Care Act will introduce new protections for whistleblowers. ASIC is also paying close attention to corporate whistleblower programs and a statutory review of Australia’s private sector whistleblowing laws under the Corporations Act is expected later this year.
As investigative journalists continue to shine light on poorly handled whistleblower complaints, 2024 has seen one whistleblower jailed and will see a second Australian whistleblower facing a criminal trial. We are also continuing to see lobbying for simplification and harmonisation of complex state and federal whistleblower legislation.
The stakes are high, and the way organisations respond to whistleblowers can help to promote a culture of transparency or leave them terribly exposed to legal issues, regulatory action, and significant long-term reputational damage.
Triaging Complaints
Whistleblower complaints remain the number one way in which public and private sector wrongdoing is exposed. While some complaints may be frivolous or unfounded, others can unveil systemic issues that require immediate attention. The challenge for executives lies in efficiently identifying and assessing these types of complaints.
When complaints are received, trained executives must thoroughly assess them to determine their validity and priority for investigation. This can be a challenging process and ensuring the right people are engaged, at the right time, is critical.
The triaging of complaints is often hampered by sheer volume, as well as issues of anonymity and a lack of information. While the ability to report anonymously is crucial for whistleblowers, it can be challenging to obtain information and speak to key witnesses for fear that their anonymity may be compromised. These factors can undermine the effective management and assessment of matters. Further, executives must learn to draw a distinction between workplace grievances and genuine whistleblower complaints to ensure the right protections are afforded.
To overcome these issues, organisations should engage not only those with the requisite skills to understand complex and disparate legislation, but also experienced investigators who are able to assess complaints and determine the most efficient path forward. Setting clear criteria for evaluating the seriousness of complaints and establishing a formal decision-making process for investigations will ensure that resources are directed to where they are needed most. Importantly, any persons involved must be afforded procedural fairness.
Knowledge and experience supported by strong policies, processes and systems will aid in streamlining the initial assessment phase. This will ensure that all matters are escalated and dealt with appropriately..
Ensuring an effective and credible whistleblower program
Above all, whistleblowers must be afforded protection and their complaints must be promptly investigated. Delayed or inadequate investigations can exacerbate issues and undermine the credibility of an organisation’s overall whistleblower program.
Executives are encouraged to take the following steps to ensure a rigorous investigation process and effective response:
Ensure that organisations clearly understand the legislative environment in which they are operating: This is crucial when navigating a myriad of state, federal, domestic and international laws.
Prioritise anonymity and confidentiality: Reassure employees of their rights to confidentiality and anonymity when coming forward with complaints.
Create a structured reporting system: Implement a structured reporting system that captures essential information from whistleblowers. Keep in mind that if a matter is particularly sensitive, you may only get one opportunity to extract key information from an affected party or whistleblower.
Conduct initial screening: Designate a team to conduct an initial screening of complaints to clearly distinguish between genuine whistleblower complaints, workplace grievances, and potentially frivolous or vexatious complaints.
Set objective criteria for categorisation: Develop objective criteria for categorising complaints based on their severity, potential impact, and credibility.
Focus on patterns and trends: Similar allegations from different sources, patterns of behaviour and trends may indicate systemic issues, emerging risks or cultural concerns within the organisation that require immediate attention.
Consider the need for independence: In complex cases or situations involving highly sensitive issues or senior leaders, executives may consider engaging experts who can provide an additional level of objectivity and different skillsets.
Keep the whistleblower informed: Where possible, whistleblowers should be kept informed as to the status of the investigation. This will assist in reinforcing the organisation's commitment to addressing whistleblower complaints.
Ensure visibility and commitment from the top: As a matter of good corporate governance, all companies subject to whistleblower legislation should ensure that boards are updated on the effectiveness of whistleblower programs and informed of any material or systemic issues as they are reported.
Acknowledging whistleblowers as essential contributors is not merely a compliance measure.
To foster a culture that encourages ethical behaviour and a climate of transparency, organisations must demonstrate an ongoing commitment to addressing these complaints promptly and with sensitivity. This requires an environment in which whistleblowers feel safe, supported and listened to. Similarly, executives must uphold their responsibilities and take all steps necessary to protect their stakeholders from cultural, reputational, and financial harm.
[1] Public Interest Disclosure Amendment (Review) Bill 2022 – Parliament of Australia (aph.gov.au)