Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

Yes, sorry—Jeff Morris. Don Morris is actually a Tasmanian, so apologies to Jeff. The information he brought forward led to a separate line of inquiry into CBA and, of course, a call by the committee for a royal commission into CBA back then, which in many ways set in motion a number of Senate inquiries following that, which led us on this long and winding road to the banking royal commission that we have now. I also acknowledge Dr Benjamin Koh from CommInsure who came forward and spoke to Four Corners. I had a number of discussions with Dr Koh. He is a very brave man, who, once again, took on the might of the Commonwealth Bank and found himself out on his backside under incredible stress and pressure simply for being honest and wanting to do the right thing. And, of course, the other whistleblower who came forward in the ASIC inquiry was Mr James Wheeldon, who blew the whistle on practices at ASIC which essentially reflected on the corporate regulator being too close to its clients, the major banks. While that was controversial at the time, I think we've seen through the banking royal commission and other disclosures that that cosy culture between the regulator and the banks has been a serious problem and needs to be addressed.

Had these whistleblowers not come forward, it would have been a lot harder for us to do our work. That disclosure is essential and it is in the public interest. But what I do know from not just their experiences but a number of other whistleblower experiences is that, if you blow the whistle, particularly in a big corporation or a big organisation, be it a government department, be it a large company or be it a smaller organisation, you're branded for life. You're branded for life if you are a whistleblower, regardless of whether or not you're doing the right thing. Your motivations may be pure. You want to see injustice or an aggrievement addressed, but you are branded for life. No matter what kind of platitudes I've heard, I believe that whistleblowers find it very difficult to be re-employed, and many of them end up suffering mental illness and issues because they've taken a brave stance and they've taken on the powers that be. Of course, that's why the Greens have had a very strong view that we should actually have a US system of financial rewards in place for whistleblowers. I think what you're giving up, essentially, is a lifetime of employment. You're going to find it very difficult to be employed once you're branded as a whistleblower. Although you've done the right thing, for some reason, the aspersion is cast that somehow or another you are not trustworthy because you have blown the whistle on improper practices in an organisation.

So one of the committee's main recommendations is the establishment of a whistleblower protection authority, to be housed within a single body or an existing body, that can support whistleblowers, assess and prioritise the treatment of whistleblowing allegations, conduct investigations of reprisals and provide oversight on the implementation of the whistleblowing regime for both the public and private sectors.

I know Senator Patrick wants to speak on this shortly, so I want to read very briefly additional comments that were provided by the Australian Greens in the committee report:

The Australian Greens believe this Bill is a missed opportunity. While the Bill does improve protections provided for whistleblowers—off a very low base—it has failed to do so adequately or in a way that recognises the enormous toll that whistleblowing can have on an individual.

…   …   …

As is noted in the committee report, the Bill fails to address a number of recommendations from the Parliamentary Joint Committee on Corporations and Financial Services' report on Whistleblower Protections. The report provides a contemporary and comprehensive list of reforms required to protect and compensate whistleblowers. These recommendations were unanimously agreed to by members of both houses, from multiple parties, only six months ago. The Parliamentary Joint Committee served up the solutions on a plate, but the government have ignored—

a large number, especially important recommendations—

… Professor A. J. Brown—

Who as I understand was in the chamber a bit earlier today and may well still be—

Griffith University has listed the major areas of reform set out by the Parliamentary Joint Committee, but not provided for in the Bill—

I think Senator O'Neill alluded to this in her speech a little bit earlier—

i. Providing business with a single, simple Whistleblower Protection Act covering all relevant Commonwealth regulation, rather than multiple legislative requirements …

ii. Clear coverage of wrongdoing, and clear roles and responsibilities for other Commonwealth regulatory and law enforcement agencies, beyond the Treasury portfolio;

iii. Comprehensive coverage for all private and not-for-profit sector employees who reveal wrongdoing by or within the control of their employer, under Commonwealth regulation, i.e. beyond the present range of corporate, financial service and tax entities;

iv. Access to remedial and compensation avenues beyond the courts (e.g. via the Fair Work Commission, as provided for in the Public Interest Disclosure Act 2013);

v. An agency with full obligations and powers to implement the regime, including to take action to ensure protection and compensation (e.g. a whistleblowing protection authority or unit); and

vi. Effective resourcing for this implementation—

In that case, of course, we believe a reward based scheme might be worth considering—potentially raised from a levy from various business sectors. It goes on:

1.4 Given the extent of these shortcomings, and the fundamental nature of some of them, it will be very difficult to address all of these issues through amendments to the Bill.

We won't be seeking to do that tonight. However, we will have one amendment. I plan to talk to that amendment when we go in committee, so I won't spend too much time on it now, but let me say that whistleblower rewards are a very important part of the solution to the problem—as complex and difficult as that is. It goes on:

1.5 Offering legal protections is often not enough for someone who has knowledge of fraudulent activities to come forwards with information and risk their financial security, job security and mental health. One of the most important and progressive recommendations of the Parliamentary Joint Committee was to introduce a reward scheme for whistleblowers (Recommendations 11.1 & 11.2)—

however, as I said earlier, they are missing from this bill. It goes on:

1.6 This is not a radical idea. The US False Claims Act was passed in 1863. It now allows whistleblowers to receive up to 30 per cent of reclaimed money that has been stolen or avoided from government authorities. In 2015, 80 per cent of the around $3.5 billion recovered by US Justice Department was a result of actions taken by whistleblowers.

1.7 Rewards work. They encourage disclosure. They recover ill-gotten gains. And they help compensate whistleblowers.

Of course, there are always unintended consequences with these kinds of laws, and they need to be looked at very closely. We have considered those and how they could be dealt with, and we believe that this is something that should be implemented. I'll go through that in more detail when we get to the committee stage, but I just wanted to note that there was an article in The Australian Financial Review only a few days ago by Elouis Fowler and Tom McIlroy. The article says:

Forty-five Australian whistleblowers have tipped off a US corporate regulator about suspected misconduct and may be financially rewarded for their actions.

The Australian whistleblowers were among 650 people outside of the US who complained to the US Securities and Exchange Commission Office of the Whistleblower.

The SEC has a reward program for whistleblowers whose tip-offs lead to successful sanctions which attract penalties exceeding $US1 million ($1.37 million).

A report by the US commission revealed Australia to be the third-largest source of international complaints behind Canada and Britain.

That is not surprising, considering how many multinational and transnational corporations inhabit our planet, shall we say. The article continues:

It's likely these complaints are from employees working for US-listed firms or companies with headquarters in the US.

This is something that was looked at by the committee, and I hope that the Senate considers our amendment when we put it up.