By Suelette Dreyfus, University of Melbourne
The G20 countries’ whistleblower protection laws fail to meet best international standards, according to the first independent evaluation of both public and private sector whistleblowing laws.
This is despite the fact that in 2010, these countries – the largest economies in the world – pledged adequate measures would be in place to protect whistleblowers, and provide them with safe, reliable reporting avenues for revealing corruption, fraud and other crimes.
Many G20 countries have large gaps that leave whistleblowers with little legal recourse to be reinstated or compensated if they are sacked for exposing wrongdoing. Corruption increases costs for businesses and causes the loss of billions of dollars in economic activity.
Whistleblowing is possibly the most effective way to expose corruption, fraud and other wrongdoing. Hospitals are better, cars are safer and taxes are spent more wisely – thanks to whistleblowers.
Without strong whistleblower laws, employees are subject to harassment, firing, physical threats and other types of retaliation. This deters people from reporting information that could save lives, environmental resources or money.
Private sector lagging
Researched by an international team of experts from both civil society and academia, the report was launched jointly this week in Paris at the OECD, in Brisbane at an anti-corruption conference and in Melbourne at the C20 (Civil Society) Conference.
It scores the G20 countries’ laws (with a 1 for comprehensive, 2 for somewhat or partially comprehensive or 3 for absent/not at all comprehensive) across a range of criteria for the protection of whistleblowers, and includes comparison tables for public and private sector laws.
The report shows that the private sector protections lag well behind the protections applying in the public sector in most G20 countries. The report results mean that the G20 should make addressing this shortcoming a strategic priority when they meet in Brisbane in November. Reform to the public sector protection laws must also stay on the agenda because while these have improved a great deal, these laws also fall short of best standards.
However it’s not all doom and gloom. Since 2010, new whistleblower laws have been passed in Australia, Bosnia and Herzegovina, France, India, Italy, Jamaica, Kosovo, Luxembourg, Malaysia, Malta, Peru, Slovenia, the Republic of Korea, Uganda, the US and Zambia. Dozens of other countries are considering new laws or monitoring how their current laws are functioning in practice.
Many elements of public and private sector laws in most G20 countries now reflect international best practice. These include protections from a wide range of retaliation, a broad definition of who can qualify as a “whistleblower,” and options to report internally or to government regulators. Further, most laws require employees to have a reasonable belief – not definitive proof – that a disclosure is accurate.
Progressing, but improvement needed
Meaningful progress has occurred in the whistleblower laws of several G20 countries, notably China, France, India, the Republic of Korea, Australia and the United States.
But the report highlights at least four key areas in need of improvement across both sectors:
- protection for using external disclosure avenues when justified and required, such as the media, Members of Parliament, non-government organisations and labour unions
- improved protections for employees making anonymous reports of wrongdoing
- Requiring organisations to have good internal disclosure procedures (e.g. including requirements to establish reporting channels, internal investigation procedures, and to protect internal whistleblowers from point of disclosure)
- Requiring transparency and accountability on use of the legislation/availability of protection, including annual reporting and overriding of confidentiality clauses.
Anonymous channels are critical to get those who know about corruption to speak up to someone in the first instance. Without them, a government institution or a corporation may never know about wrongdoing.
Technology can enable things like anonymous and confidential reporting of fraud and corruption in ways that were not possible previously. However people must also be confident that management will actually act in good faith in the disclosures. Without that, a company can install the best identity-hiding, military-grade encryption systems in the world – but whistleblowers won’t use it. They will be loath to step forward to reveal the truth about serious wrongdoing.
Of the G20, Australia achieved the high score for public sector protection laws relative to other countries (though not a perfect score), but scored only in the middle of the pack for protections in the private sector.
In their current G20 Anti-Corruption Action Plan (2013-2014), the G20 leaders committed to:
…enact and implement whistleblower protection rules .. and also take specific actions .. to ensure that those reporting on corruption, including journalists, can exercise their function without fear of any harassment or threat or of private or government legal action for reporting in good faith.
They have not yet achieved this goal.
Making laws that truly protect whistleblowers requires some skill and specialist knowledge but it can be done, as evidence by the progress made so far. What’s missing in many G20 countries isn’t lawyerly expertise; it’s political will. Hopefully leaders at November’s G20 meeting will commit to finding this will.
The Whistleblower Protection Rules in G20 Countries: The Next Action Plan report, is by researchers from Blueprint for Free Speech (NGO), The University of Melbourne, Griffith University and Transparency International-Australia Chapter.
Dr Suelette Dreyfus also does work for Blueprint for Free Speech, a small not-for-profit organisation which researches best practice freedom of expression laws.