Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

I acknowledge at the outset the contribution that Senator Shoebridge made through the committee process as we looked at the Public Interest Disclosure Amendment (Review) Bill 2022. I think important evidence was gathered during the committee stage. I also commend the officers of the Attorney-General's Department. I am very pleased to see that some amendments have been put forward by the government in relation to that vexed issue of the entwining of personal, work-related conduct with matters which properly form the bases of a public interest disclosure. As was commented on during the committee's deliberations and in the evidence we received, quite often there is a blurring of the two. I say that as someone who had responsibility as a whistleblower officer in a corporate sector organisation with nearly 4,000 employees and with operations across a number of continents and as someone having to deal with the sorts of matters which do arise.

Some of these issues are extraordinarily complicated because, as Senator Shoebridge rightly said, sometimes whistleblowers who are raising concerns about what is happening in an organisation do get targeted in terms of their workplace performance, in terms of whether or not they're overlooked for promotions, in terms of allocation of responsibilities and in terms of being counselled with respect to their attitude. The examples I gave during the course of the inquiry—and these are real-life examples—were about executives or senior managers potentially raising issues with respect to cost blow-outs and schedule blow-outs on projects and raising concerns with respect to project governance and then being told that they had the wrong attitude or weren't playing the team game—'Get on the team game'—et cetera. These can be very, very difficult issues, and I'm firmly of the view that, in considering those issues, consideration has to be given to the reality of the situation of the whistleblower themselves. So I am pleased that the Attorney-General's Department has worked on putting forward some amendments, which I do think clarify some of the issues which arose, and commend the government for doing so. As Senator Cash said, the opposition is supporting the legislation. We think there are important changes which are coming through this legislation. There are some other further reforms which I think should be considered as the operation of this legislation is reviewed, and I'll talk about that.

At the outset, though, I want to deeply recognise the contribution that whistleblowers make to our civic society in both the public sector and the private sector. They are absolutely vital to identifying misconduct that occurs in both the public sphere and the private sphere. I was personally honoured, in the course of the conduct of the committee inquiry, to hear evidence from Mr James Shelton, who is a quite a legendary whistleblower in the Australian context. Mr Shelton was involved in a case exposing and bringing to the public attention one of the most egregious cases of foreign corruption engaged in by Australian companies in our modern history, and that was the foreign bribery offences committed by Securency and Note Printing Australia in their efforts to generate business, in particular across South-East Asia. Mr Shelton, with another individual called Mr Brian Hood, extraordinarily bravely brought those egregious activities to light.

I want to read and put on the record in this place and in honour of Mr Shelton, Mr Hood and other whistleblowers the comments which Her Honour Justice Hollingworth made in relation to one of the cases. We should all reflect on these words of Her Honour Justice Hollingworth in terms of whistleblowers and the important contribution they make to civic society:

13. Before I turn to consider your personal circumstances, I wish to say something about the effect this offending has had on others. The prosecution rely upon the significant adverse effects that all of the foreign bribery offences have had on two "whistle-blowers", James Shelton and Brian Hood.

14. Mr Hood joined NPA as its company secretary, the year after you had left.

And I should say she's referring there to those who have pleaded guilty to the offences.

When he became aware of the companies' illegal activities, he raised his concerns with the CEO, the NPA board, and a number of RBA officials. His attempts to report what was happening, and to change the corporate culture, were met with hostility and resistance. He was eventually made redundant.

15. Mr Shelton joined Securency in 2007, as the director of business development. When he realised that he was expected to take part in foreign bribery as part of his role, he too became extremely concerned. He raised the matter with the Australian Federal Police in 2008, but they appear to have done little to investigate his reports at that time. Mr Shelton was dismissed in late 2008.

16. As I have noted on earlier occasions, the corporate cultures at both NPA and Securency involved secrecy and a denial of responsibility for any wrongdoing; staff were discouraged from examining too closely the arrangements in relation to overseas agents. Given the corporate cultures in which they were operating, Mr Hood and Mr Shelton both showed tremendous courage in raising their concerns about the foreign bribery activities with appropriate people. In each case, their concerns were dismissed or not followed up on. Their careers suffered as a consequence of their attempts to do the right thing.

17. Unfortunately, given their number, size and complexity, the various foreign bribery court proceedings have lasted for many years longer than anyone might have anticipated, without there having been any public acknowledgement of the very important role played by Brian Hood and James Shelton in exposing what happened within Securency and NPA. I can readily accept that what has happened to them since they raised their concerns has caused both of them considerable personal distress, professional hardship, and financial loss.

As we reflect on this legislation, we should reflect upon the courage demonstrated by whistleblowers both in the public sector and in the private sector, and the personal cost that they incur when they blow the whistle on wrongdoing. All of our considerations of these matters should be informed by consideration of that courage on the part of the whistleblowers. In my engagement with Mr Shelton during the course of the inquiry, I raised the issue of how assistance could be provided to whistleblowers in these extraordinary situations. We've just heard from the judge in her sentencing remarks with respect to someone who was actually found guilty of engaging in this inappropriate conduct. Her sentencing remarks talked about the toll that this took on Mr Shelton and Mr Hood. I had an engagement with Mr Shelton with respect to this, in terms of how we can better support whistleblowers in this position. I want to read from the engagement I had with Mr Shelton in that regard:

Senator SCARR: Okay, understood. I'll move quickly to my second topic, which is the utility of a whistleblower protection authority. Mr Shelton, in trying to put myself in your shoes—which is very difficult to do—it seems to me that someone in your position as a potential whistleblower is standing at the entrance of an extraordinarily complicated legislative maze.

Mr Shelton: Yes.

Senator SCARR: You enter that maze, and there are inclusions, exclusions, defined terms, undefined terms and statutory cross-references. It's like you're trying to navigate the maze while solving a cryptic crossword puzzle. At the same time, you've got the personal pressure of what it means for you professionally and financially, and what it means for your family. And, at the same time, you've got the potential threat of reprisal action, right?

Mr Shelton: Yes.

Senator SCARR: While I was thinking about that situation—and Senator Shoebridge gave the analogy of someone having a map to guide them through a minefield, which is very evocative—I was also thinking about the potential utility of a whistleblower protection authority. It can potentially act as a guide, to provide guidance in navigating that maze.

…   …   …

Mr Shelton: Indeed, and I agree 100 per cent with what you've just said. Just briefly, for my experience there was no whistleblower protection authority. I had to get legal advice at $600 an hour each time I met the AFP or did a witness statement.

This is someone who has blown the whistle on one of the most egregious acts of foreign bribery in Australian corporate history—involving partly government owned agencies—and he's had to go and get his own legal advice at $600 an hour each time he went to court. This is what he said:

… I was summonsed to appear as a witness, had to wait out the front of the court and then was cross-examined by QCs for two days. There was no path or guide; I did it all because I was determined to get this result.

An independent whistleblower protection authority, which could provide a guide, a way forward and a pathway on what you will experience, what's going to come up and what you will feel, and also provide some support services, would have made the world of difference to me. It's too late for me, but, for others who come after, yes—100 per cent—there needs to be an independent whistleblower protection authority that covers both the private and public sectors.

What is the point of putting in all of these protections to help whistleblowers from reprisal actions if they're in a David-and-Goliath battle with a huge agency, which has all the resources that it requires in order to defend itself, and you've got someone like Mr Shelton or Mr Hood, who has to delve into their own pockets to try and continue the good fight in terms of exposing corruption and wrongdoing in this country. They need support.

I note that the Parliamentary Joint Committee on Corporations and Financial Services recommended, during the course of the previous government, that a whistleblower protection authority be established. Amongst other things, the committee proposed that the authority would:

provide a clearing house for whistleblowers bringing forward public interest disclosures;

provide advice and assistance to whistleblowers;

support and protect whistleblowers—

and that is absolutely needed. And, from my perspective, I think that everything that we can do to provide support to whistleblowers who are identifying and revealing in the public interest corporate wrongdoing is a good for all of society, because we need these episodes of corporate wrongdoing and public-sector wrongdoing to be exposed. And we need them to be exposed as early as possible, because that's in the best interests of the whole of the Australian society.

I'm someone who worked for 12 years in an organisation that had interest in South-East Asia and in other jurisdictions around the world. It had high-risk ratings in terms of foreign corrupt practices. I'm pleased to say the company I worked for never went down that path—it was part of our culture. But I saw firsthand the impact of corruption on those societies, and, when we look at Mr Shelton and we look at Mr Hood, we should reflect on the matter that not only did they do a great service to the Australian community they also did a great service to the people in those countries, and South-East Asia, in particular, as some of their leadership were prepared to accept bribes to the direct detriment of the people of those countries. So, not only did Mr Shelton and Mr Hood provide a good service to the people of Australia they also provided a great service to the people in those overseas jurisdictions where that foreign, corrupt activity was taking place, and that needs to be recognised as well.

I note that the previous government, in response to the Joint Parliamentary Committee on Corporations and Financial Services recommendation that a whistleblower protection authority be established, the previous government's, the coalition government's, response was:

the Government supports a post-implementation review of whistleblowing protection. This will provide the opportunity to assess the merit and cost case of establishing a one-stop shop Whistleblower Protection Authority when the present reforms have had a reasonable time to operate and further information is available.

So, certainly the previous government, the coalition government, of which I was a part, was open-minded to the establishment of a whistleblower protection authority. I think the previous government was right to be open-minded with respect to the establishment of a whistleblower protection authority. From my perspective, I think the establishment of such an authority would provide an invaluable resource to assist whistleblowers who want to do the right thing, as Mr Shelton did and as Mr Hood did, to expose wrongdoing but to provide them with the support they need to navigate an extraordinarily complicated system and to give them some protection against reprisal actions that whistleblowers often suffer.