A deal struck last week between the Coalition Government and Senate cross-benchers Nick Xenophon and Derryn Hinch has increased the likelihood of major whistleblowing law reform in this term of parliament.

In return for the cross-benchers supporting the creation of the Registered Organisations Commission to regulate unions, the government agreed to stronger protection for union whistleblowers and committed to applying similar protections to the private sector, pending a parliamentary inquiry due to report in 2017. The new measures include criminalising reprisals against whistleblowers and compensation for loss, damage or injury where an inappropriate reprisal is taken. The Government has set a timeframe for reforms with a public consultation period expected between December 2016 and March 2017, and finalisation of legislation by the end of 2017.

The inquiry and consultation are likely to be informed by an AICD-supported research project that is examining the practices already in place in organisations across a range of sectors. The Whistling While They Work 2 project, involving a team of researchers from Griffith University, Australian National University, University of Sydney and Victoria University of Wellington, surveyed 702 public sector, business and not-for-profit organisations on their whistleblowing procedures.

The preliminary results, released earlier this month, have been positive in terms of whistleblowing awareness with the overwhelming majority of the surveyed organisations reporting having some policies in place. On the fundamentals, 90% of organisations reported having processes for ensuring appropriate investigations in response to wrongdoing concerns raised by staff, 89% indicated they had formal whistleblowing procedures policies, and 76% responded that they accepted anonymous wrongdoing concerns.

“Too many organisations clearly lack the specific guidance and incentives they need to realise their own goals of actually protecting their whistleblowers.”

The fact that over three quarters of organisations allow for anonymous reporting points to the urgent need for legislative reform, according to project leader Professor A.J. Brown of Griffith University.

“This result alone confirms how badly the narrow protection provisions in Australia’s Corporations Act need to be overhauled, given they do not even allow or contemplate such anonymous reporting,” Professor Brown said.

Despite encouraging results overall, the preliminary findings have revealed that more work needs to be done if whistleblowers are to receive the support they need across the board.

“Even when making good attempts to encourage their staff to report, too many organisations clearly lack the specific guidance and incentives they need to realise their own goals of actually protecting their whistleblowers,” Professor Brown said.

Some of the concerns raised in the preliminary findings include:

  • 23% of organisations having no particular system for recording and tracking wrongdoing concerns;
  • 23% of organisation not having any strategy for delivering support and protection to staff who raise concerns; and
  • 38% of organisations indicating they did not assess the risks of detrimental impacts to staff from whistleblowing.

There is still time for AICD members to join the project and contribute to the research, according to Professor Brown.

“The opportunity is still there for directors or for management of organisations to decide they want to come in and start participating. We’ll be allowing new participants to come in until the end of April 2017. So there’s still a good window for organisations to get on-board,” Professor Brown said.

Data will be made available to participants to gauge where they are compared to their peers.

“The organisations that do come in to participate will actually be able to benchmark their own whistleblowing positions, relative to others in their industry, through the project,” according to Professor Brown.

For more information, visit the project website.