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Business | Legal

How to avoid public disclosure of internal misconduct – insights from Professor AJ Brown

20 Jun 2019, by Amy Sarcevic

Earlier this month, Federal Police raided the home of Newscorp journalist Annika Smethurt following the publication of a leaked plan allegedly permitting governments to spy on Australians.

The raid was reportedly the result of an act of internal whistleblowing and follows two recent high-profile whistleblowing cases: that of David McBride, former Defence Force Lawyer, and Richard Boyle of the Australian Taxation Office (ATO) earlier this year.

Professor AJ Brown of Griffith University says the incidents serve as a warning to public and private sector organisations about the importance of providing adequate support for those who expose internal wrongdoings.

“Our research shows that whistleblowers only tend to go to the media after taking i­nternal action which has been inadequate. And indeed, both McBride and Boyle claimed that this was the case for them”, he says.

What exactly is an adequate or an inadequate response to whistleblowing and how can organisations prevent instances of public disclosure?

Ahead of Informa’s Whistleblowing Conference, Professor Brown outlines four important considerations that all organisations should make in this regard.

Recognise that a workplace grievance may actually be a matter of public interest

“It is rarely the case that an employee will come forward and specify that they are ‘whistleblowing under ‘section X’ of the ‘Workplace Such-and-Such Act’. It is up to the employer to recognise an act of whistleblowing, which is actually more challenging than it sounds”, says Professor Brown.

“As an example, instances of ‘low-level’ bullying, harassment or consumer mishandling may be perceived as relatively inconsequential workplace grievances and not credited with the significance that they deserve.

“Unless appropriate action is taken, you may not realise (until you later read about it in the media) that the employee was actually uncovering a deeper public interest matter, for example, a culture of racism or sexism within your organisation.

“Indeed, our research has shown that in a half to one third of public interest disclosures, there were co-occurring workplace grievances that had not been properly dealt with”, he adds.

Recognise that whistleblowers are your ‘best friend’…

“In large corporations, maintaining integrity within all pockets of the business can be challenging”, says Brown.

“Whistleblowers can help diagnose areas of weakness before they are publicly exposed in the form of a high-profile consumer complaint – like the cases of McBride, Boyle and many of the dramas we all followed during the recent Royal Commission. In this regard, whistleblowers can be an organisation’s ‘best friends’.

“Conversely, a poorly handled whistleblower can become an organisation’s ‘worst problem’, forced to not only publicly out instances of unethical or unlawful conduct, but also point to problems with the organisation’s ability to respond to them”.

…and treat them as such

Professor Brown is the project leader for ‘Whistling While They Work 2’ – a three-year collaborative research study led by Griffith University; which surveyed 700 public and private sector organisations on their whistleblower protection strategies.

The first stage of the study found that only one third of businesses and not-for-profits provide designated support for whistleblowers; and just 20 percent have mechanisms for ensuring a whistleblower is left no worse off for having spoken up.

“We know organisations are waking up to the need to have good internal whistleblowing protections. But they may not yet realise the level of action required to make people feel adequately encouraged and supported to speak up, and to meet new corporate obligations”, he says.

Just weeks ago, Richard Boyle, spoke publicly of the immense difficulties he faced after outing the alleged misconduct of the ATO.

The stress of reprisal – in Boyle’s case, 66 charges (including telephone tapping without consent) and a potential 161 year prison sentence – unsurprisingly took its toll on his mental and physical health.

“Companies must understand that they are liable in these situations”, adds Professor Brown.

Finally, realise that the onus is on you to adequately handle the situation

Another key finding within Brown’s research was a lack of accountability.

“Too often, the buck is passed on employee complaints, between leaders and internal teams. This relates to my earlier point of recognising an act of whistleblowing. The initial grievance may be an HR matter, but it should also be dealt with by the firm’s executive leadership and compliance teams – as it may be redolent of a more systemic failure within the organisation”, he says.

This year there were a number of important reforms to the Corporations Act Part 9 4AAA, requiring large or publicly listed companies to have a whistleblowing protection policy in place. Professor Brown says that rather than adopting a minimalist policy to try and appease the regulator, it is important that organisations “take whistleblowing seriously as an internal governance priority”.

Professor AJ Brown is to present at Informa’s Whistleblowing Conference where he will share further details of his team’s research and provide advice on how to implement a robust whistleblowing protection strategy.

You may download the full agenda here.

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