Business Ethics Research Unit,
School of Management,
Victoria University of Technology
Published as Working Paper 3/2000 by Victoria University of Technology
This article is located on the
Suppression of dissent website
in the section on Documents
Abstract
Whistleblowers are those who sound the alert on scandal, danger, malpractice, or corruption. This paper will review Australian whistleblower protection legislation and the extent to which legislative measures have been effective in protecting whistleblowers from workplace retaliation. It will then address whistleblowing in the context of debate over issues of organisational loyalty and disloyalty. It will argue that more effective policy measures than those offered to date are required if whistleblowing is to be facilitated in the furtherance of both organisational and public interests.
Whistleblowers are those who sound the alert on scandal, danger, malpractice, or corruption. In addition to overtly illegal activities such as bribery , theft, and fraud, and more recently created legal offences like discrimination in employment, it also includes negligence, resource wastage, misrepresentation, and safety violations. These diverse items will be embraced under the single term ‘malpractice’ in this paper. In some definitions of whistleblowing the whistle is only held to have been blown if the malpractice is made known in a public forum or put on public record (Dempster 1997, 1).
That understanding of whistleblowing is in at least one sense at odds with its purpose, which is to put right a discovered wrong. If a wrong can be righted within an organisation by means of internally alerting personnel to its occurrence, then there may be no need for the whistleblower to air a complaint in a public forum. The literature on whistleblowing is divided on this point. A recent article in the Journal of Business Ethics sought to establish a restrictive definition of whistleblowing that would confine its meaning to those who go to an external entity or to a public forum with information of malpractice (Jubb 2000). On the other hand, the term is frequently used in the literature to include any disclosure of malpractice whether internal or external (e.g. Near and Micelli 1985; Chiasson et al. 1995; Zipparo 1999).
While external whistleblowing is a qualitatively distinct step from internal disclosure (Jubb 2000, 91), it invariably results from a combination of the frustration of the whistleblower with a failure of internal disclosure to address the issue, or a perception that internal disclosure will be fruitless, coupled with the admittedly subjective judgement of an individual as to the consequences of not blowing the whistle. In all cases studied by Lennane (1993), and in the overwhelming majority of cases studied by De Maria and Jan (1997) and Rothschild and Miethe (1999), whistleblowers blew internally and through approved channels before going outside their organisation. In each and every case where they did so, they believed that their organisation would support their attempt to eliminate or prevent malpractice.
American research suggests that employees go to external authorities ‘only once they come to believe that internal channels are closed to them, that the organisation is not moral, and that senior management is inert or complicit in the wrongdoing’ (Rothschild and Miethe 1999, 124). It is the failure of the organisation, or of a senior person or persons within it, to take action that leads to the decision to disclose outside the organisation, whether to a regulatory authority, to the media, or elsewhere. Few whistleblowers seem to have deeply considered or were even aware of the likely personal consequences of external disclosure. Internal disclosure was initially believed by the vast majority of whistleblowers to be the point at which the reported malpractice would be rectified. As such, internal disclosure has as much claim to be regarded as whistleblowing as does the option of going outside the organisation.
I will therefore define whistleblowing as follows: ‘Whistleblowing is the deliberate, voluntary disclosure of individual or organisational malpractice by a person who has or had privileged access to data, events or information about an actual, suspected or anticipated wrongdoing within or by an organisation that is within its ability to control. The disclosure may be internal or external and may or may not enter the public record’. This definition is based primarily on those of Jubb (2000, 78) and Chiasson et al. (1995, 24), and captures the usages of whistleblowing in all of the literature that has been examined in relation to this paper.
As recent work has emphasised, there is daily evidence of widespread malpractice and systemic rule-breaking within organisations: children in care are abused, ships are operated in an unsafe manner, hospitals and nursing homes cover up medical incompetence and patient mistreatment, companies defraud governments, public servants deceive ministers, and so on (Gobert and Punch 2000). Yet these are often the ‘glamour scandals’, the headline-grabbers.
Of more concern to this paper - because occurring on a wider scale - are the less glamorous examples of malpractice that fail to gain a mention in practically any of the whistleblower literature. These include gross mismanagement and resource wastage, unsafe and grossly negligent work practices resulting in personal injury and death, and workplace bullying and favouritism. The Victorian Workcover Recent Prosecutions publications provide ample testimony to the everyday nature of malpractice and gross negligence at the organisational level (Workcover 1998, 1999).
A recent American study surveyed some 1300 public sector employees in regard to whistleblowing. These results, combined with an analysis of the findings from several other published whistleblower studies, led the researchers to estimate that approximately one third of American employees have observed conduct that they consider to be unethical or illegal in their workplace. Of these, more than half said nothing about the observed malpractice (Rothschild and Miethe 1999, 112). In a recent NSW public sector study by the Independent Commission Against Corruption (ICAC), 41 percent of respondents believed that corrupt activity was likely to occur in their work section (Zipparo 1999). On the basis of these studies, it can be held likely that malpractice is fairly widespread.
The primary intention of whistleblower protection legislation is to discourage workplace reprisals against whistleblowers. According to the ICAC study, 71 percent of those surveyed expected that people who reported corruption would suffer for reporting it. Those who had been in the public service for more than a year were much more likely to hold this view that those who had been employed for less than a year (73 percent vs 55 percent). One third of those surveyed were not confident that their organisation would handle reports of corruption appropriately, with markedly less confidence in rural areas. While 84 percent believed that something could be done about corruption, only 26 percent believed that something would be done about it (Zipparo 1999).
The disclosure of malpractice is followed by a response. De Maria and Jan (1997) classified organisational responses to Australian public sector whistleblowers into three categories. Procedurally correct responses occurred in only one third of the cases examined. Negative responses included inaction by the superior - which occurred in 26 percent of all reported cases of malpractice - and the alerting of the alleged offender. Obstructive responses included the covering up of wrongdoing by the superior, buck-passing, and the destruction of evidence.
Workplace reprisals occurred against some two-thirds of those who formally reported malpractice (De Maria and Jan 1997, 41). Both official and unofficial reprisals were examined. These also occur in the private sector. Official reprisals punish the whistleblower for speaking out. They are veiled behind policy and procedure, mostly to avoid claims of victimisation, and include formal reprimand, punitive transfer, referral to a psychiatrist or counsellor, and poor performance reviews. A wide range of lesser tactics include obstruction of the investigation, withdrawal of essential resources, being kept in the dark, being adversely reported over other matters, and the attachment of adverse personnel file notes.
In De Maria and Jan’s study, 71 percent of the sample stated that they had suffered official reprisals, and a staggering 94 percent had suffered unofficial reprisals. Unofficial reprisals are based on workplace interaction and are ‘hard to investigate because the offending action is either ambiguous, subtle or deniable’ (De Maria and Jan 1997, 46). The most common is workplace ostracism, which may be orchestrated or encouraged by management. Ostracism can be especially severe in rural areas, and it has been noted that it is harder to offer effective protection against social and other reprisals in small communities where work life and social life overlap (Zipparo 1999). Other forms of unofficial reprisal include the questioning of and attacks on motives, accusations of disloyalty and dysfunctionality, public humiliation, and the denial of work necessary for promotion.
A recent large scale American study showed that some two thirds of public and private sector whistleblowers experienced each of the following forms of reprisal from their employer or co-workers: they lost their job or were forced to retire (69%), received negative performance appraisals (64%), were more closely monitored by supervisors (68%), criticised or avoided by co-workers (69%), and blacklisted from another job in their field (64%). Retaliation suffered by external whistleblowers was 10 to 15 percentage points higher than for internal whistleblowers (Rothschild and Miewthe 1999). It is abundantly clear from this and other research that reprisal is the norm rather than the exception in most places.
The personal consequences of whistleblowing are typically severe. A 1990 American study of 223 whistleblowers showed that 90 percent lost their jobs or were demoted, 27 percent faced lawsuits, 26 percent faced psychiatric or medical referral, 25 percent admitted alcohol abuse, 17 percent lost their homes, 15 percent were subsequently divorced, 10 percent attempted suicide, and 8 percent went bankrupt (cited from Dempster 1997). Recognition of these types of consequences, and that at least some whistleblowing is motivated by a legitimate concern for the public interest, led to the consideration of legislative protection for whistleblowers.
Several states and territories have some form of whistleblower protection legislation. These include the South Australian Whistleblowers Protection Act 1993, the Queensland Whistleblower Protection Act 1994, the ACT Public Interest Disclosure Act 1994, and the NSW Protected Disclosures Act 1994. Western Australia has the more limited Official Corruption Commission Act 1988. Others have considered or are considering the introduction of similar legislation (see Demaria 1995 for the background).
It is noteworthy that the Australian Acts focus on whistleblowing by public sector employees only. For example, the Queensland Whistleblower Protection Act ‘provides special protection [in the public interest] to disclosures about unlawful, negligent or improper public sector conduct’. The NSW Protected Disclosures Act is intended to ‘provide protection for public officials disclosing corrupt conduct, maladministration and waste in the public sector’. The ACT Public Interest Disclosure Act encourages ‘the disclosure of conduct adverse to the public interest in the public sector’.
In a frequently encountered view, whistleblowers are persons who render public sector malpractice visible and thereby act in the public interest by reinforcing public sector accountability. As one analyst put it, ‘public sector employees should not have to tolerate corruption because of fear of what may occur if they speak out. Equally, the taxpayer should not have to continue to bear the costs of corruption because corrupt individuals have intimidated observers into silence’ (Zipparo 1999, 83). This view is reflected in legislation which confines whistleblower protection to public sector workers.
This raises questions as to whether whistleblower laws are intended only ever to address concerns in the public sector and, if so, under what conditions. It may be that governments have decided not to impose legislative whistleblower protection requirements on the private sector. In this case, one would like to know whether the intent of the legislation actually is to protect whistleblowing employees per se, or to delimit the conditions under which protection will be offered to public sector workers who report what they believe to be malpractice.
America introduced whistleblower protection legislation in 1978 that had the effect of making 20 percent of federal employees more reluctant to report malpractice due to fear of workplace reprisals. This was because corrective action against reprisals occurred for only one percent of reprisal complaints, and so demonstrated to others the difficulty of providing effective reprisal protection (Zipparo 1999). Indeed, one writer has referred to whistleblowing as the ‘bee-sting phenomenon’ - one sting and then die (Gerald Vinten, cited in Berglund 1997). One recent article reported that in North America, corporate abuse of whistleblowers remains frequent and protective legislation is sometimes inadequate or can be subverted (Jubb 2000).
Despite the passage of the Queensland Whistleblowers Protection Act in 1994, a 1997 study held that because all the ingredients that had acted to dissuade public sector whistleblowing in the early 1990s remained in place, including informal sanctions, a culture of secrecy and fear, and authoritarian management practices - there was reason to believe that a climate inimical to whistleblowing continued to exist to the time of its writing. It concluded that the terms ‘accountable’, ‘ethical’, and ‘workplace democracy’ were ‘powerful markers in a false geography of consensus and care’ (De Maria and Jan 1997, 38-9, 55).
In NSW, a study of 800 state public sector employees’ awareness of mechanisms for reporting corruption, faith in whistleblower protection, and belief in their organisation’s willingness to provide protection, was conducted by ICAC. It found that two thirds of the employees surveyed said they had not heard of the Protected Disclosures Act, introduced two years previously. Awareness of the Act’s existence varied by employment classification level: nearly 80 percent of bands 1-4 , and nearly 60 percent of bands 5-12 - section supervisors and above - had not heard of it (Zipparo 1999). In sum, there is reason to doubt the effectiveness of current whistleblower protection legislation, particularly given its limited purview.
In regard to the involvement of regulatory authorities, Quentin Dempster has noted the possibility that whistleblower legislation ‘can be manipulated or used as a device of further "damage control." In short, the whistleblower may only get "protection" if he or she keeps the information they possess confidential to the whistleblowing receipt authority’. This raises the possibility that ‘accountability structures themselves can become part of a pattern of institutionalised cover-up, or what [has been] described as "regulatory capture" - the capture of the [regulatory] agency meant to enforce the rules by the vested interests meant to abide by them’ (Dempster 1997, 200).
The main factors that would influence failure to report NSW public sector corruption were absence of sufficient proof, a lack of legal protection, and an absence of anonymity (Zipparo 1999). These factors are important, because they counteract the viability of existing whistleblower protection legislation. Conclusive proof of malpractice is likely to be difficult to obtain, especially where the agent of malpractice has a personal reason to cover their tracks. Second, the conditions and extent of legal protection that may be provided is unclear. At least in South Australia and Queensland there is conflict between whistleblower protection legislation and corporation laws that require present and former employees to act in the best interests of the employing organisation (McKay 1996).
Anonymity is problematic because it makes protected disclosure (and perhaps investigation itself) impossible. It is noteworthy that some private companies have managed to overcome the desire for anonymity by demonstrating good faith in the investigation of whistleblower allegations (Benson and Ross 1998). I have not yet found a report of such an achievement within the public sector literature. In sum, existing legislative measures should be seen essentially as a backstop or safety net, especially in a public sector context, but the legislation in itself does not promote whistleblowing and cannot be assumed to provide effective protection even for public interest disclosures.
The major issue in whistleblowing is that of organisational loyalty (Jubb 2000, 92). Conflict can arise between personal and organisational values, and between loyalty to one’s organisation and to society. But an individual does not necessarily blow the whistle on an organisation as a whole. While it is true that many of the more publicised cases of whistleblowing have resulted from concerns about what an organisation or an arm of an organisation was doing - such as engaging in questionable contractual, environmental, employment, or safety practices (Dempster 1999), many lesser instances of whistleblowing have constituted attempts to redress individual acts of malpractice. In these cases, the values of the whistleblower were both in line with the espoused values of the organisation and the motivating cause of them speaking out.
An important issue is whether there are individual characteristics or personality types that might be more inclined to blow the whistle on organisational malpractice. There have been several attempts to identify social or psychological characteristics that might enable the recognition of potential whistleblowers, or the labelling of them as organisational deviants, ranging from disgruntled or self-interested malcontents (Seligman 1999) to strong willed high achievers with universalistic values and high levels of self esteem (Jos et al. 1989).
However, an extensive study of American whistleblowers discovered no significant socio-demographic characteristics that might distinguish whistleblowers from non-whistleblowers. Gender, marital status, educational attainment, religiosity, number of promotions, and supervisory status were all irrelevant in this respect. Further, there was no support for the existence of a whistleblowing personality, except to note that individuals with more univeralistic values were more likely to report malpractice externally (Rothschild and Miethe 1999, 113-6). The more that organisations seek employees who value ethical conduct, then, the greater the likelihood that they will get employees who expect the organisation to practice what it preaches.
There are frequent comments in the literature about workplace cultures that discourage whistleblowing by labelling whistleblowers derogatively as tattletales, rats, and squealers (e.g. Jackson 1999). Are expectations of collegial loyalty realistic, and do they intimidate? One Australian study noted an incongruity in that while whistleblowing resulted in overt workplace ostracism, covert expressions of support were received from colleagues. The researchers concluded that this indicated ‘the true nature of the about-face by workmates - that it is often an overt display of solidarity with the management line in order to protect their own careers rather than a reassessment of the whistleblower personally’ (De Maria and Jan 1997, 52).
Only 9 percent of the ICAC study respondents said that they would not report corruption because of peer pressure, and only 1 percent regarded reporting as ‘un-Australian’ or ‘dobbing’ Again, the main factors that would influence failure by public sector workers to report corruption were the absence of proof, a lack of legal protection, and an absence of anonymity (Zipparo 1999). In sum, peer pressure would appear to run a poor second to managerial or supervisory pressure as far as failure to disclose malpractice is concerned.
In many documented whistleblowing cases, the whistleblowing employee was the only person in a group prepared to take a stand on an issue. Others in the group, including superiors, often both knew and disapproved of the malpractice but, for whatever reason - usually career self-interest, to judge by many published case studies (see Dempster 201-4) - decided to turn a blind eye, and subsequently to dissociate themselves from the whistleblower at the personal level.
While voicing concern may in itself not constitute dissent from organisational practices, it has been argued that it becomes dissent ‘if one persists in expressing disagreement since by then the concern is or has become a matter of complaint also’ (Jubb 2000, 79). This view is in one sense disturbing, as it sides with the labelling of whistleblowers as dissenters rather than as upholders of an organisation’s espoused values in the face of malpractice.
To illustrate the point, suppose that an employee becomes aware of malpractice or unethical conduct, and that voicing concern to a superior does not result in any action to stop the practice. From the above perspective, the repeated voicing of concern would be perceived as dissent from microculturally acceptable workplace practices, rather than as a legitimate attempt to right a wrong that is within the organisation’s power to rectify. The employee’s dissent then becomes the problem that the organisation seeks to control.
The act of whistleblowing presupposes that there is something to blow the whistle about, and that there is some reason to expect that others will be concerned and supportive of the whistleblower’s viewpoint. Whistleblowing cannot take place in a vacuum: even in instances of malicious whistleblowing, there must be a possibility that some form of recognisable malpractice has occurred in order to make a case for investigation, regardless whether the allegation is subsequently found to be incorrect.
It is worth asking whether a malicious motive might nevertheless provide information that should be investigated. For example, a great deal of social security fraud is revealed only by the disclosures of ex-partners from a deteriorated relationship. In a similar vein, a sacked, poorly treated, or conscience-troubled employee might want to get back at their boss or organisation by disclosing information that will embarrass or unsettle it (e.g. Ballantine 2000). But because Australian legislative measures to protect whistleblowers provide penalties for those who make false reports (Zipparo 1999), the likelihood of mischief actions succeeding would appear to be relatively low.
Superiors may avoid taking action by denying that the whistleblower’s report is substantiated, denying that sufficient evidence was found to proceed further or take action in a matter, or insisting that the burden of proof falls on the whistleblower in a situation in which, by its very nature, evidence of malpractice may be impossible for a whistleblower to acquire or document. As has been emphasised, most whistleblowing takes place where alleged malpractice has been committed by someone above the complainant in the workplace hierarchy (De Maria and Jan 1997, 43). Where an allegation involves a superior it will most likely require the organisation, if it responds, to investigate a person or persons whom it has previously regarded as loyal. Again, workplace culture will play a significant part in whether and how allegations are dealt with.
One scholar has argued that whistleblowing ‘always presents ethical dilemmas originating in role conflict’ (Jubb 2000, 81). This is simply not the case. An ethical dilemma is a situation where one is torn between conflicting moral imperatives . But there is no role conflict or ethical dilemma in an employee reporting the misappropriation of supplies for personal use, gross favouritism in hiring practices, or the abuse of timesheets by colleagues or superiors. A focus on ‘big ticket’ items has overshadowed notice of the many small incidents and maladministrations that combine to create a workplace culture on which someone might blow the whistle.
Malpractice can occur at the section or subgroup level within an organisation. A particular regional office or section within a large organisation may operate in ways that are at odds with the general operating procedures of the organisation. Even in a small organisation, a team may engage in regular malpractice, such as occurred in a mortuary where groups of workers removed jewellery and valuables from bodies for personal gain (Ellicott 1996). As has been noted, where teams are involved, malpractice has become an institutionalised behaviour (Berglund 1997). The above considerations mean that organisational and microcultural factors are as important to facilitating whistleblowing as are legislative or policy measures.
While organisations customarily demand obedience and confidentiality from their employees (Bowie and Duska 1990), it is certainly debatable that external whistleblowing is an ethical dilemma on the grounds that it involves a breach of trust with an individual’s employer (as maintained by Jubb 2000). When an organisation or persons within it fail to act with propriety, or act in a way that severely troubles an individual’s conscience and that is at odds with the personally and socially responsible behaviour that the individual had been led to expect form his or her employer - and was in all probability expected to replicate - it becomes a question of whose trust has been breached.
For the whistleblower, speaking up is usually the first step; speaking out is usually the last, and one not widely taken. Whereas Jubb (2000, 92) regards this last ‘irretrievable step’ as ‘the true essence of whistleblowing’, case studies suggest it is more of a last ditch stand driven by desperation. In an extensive American study, researchers came to the opinion that typically, a whistleblower had witnessed malpractice that disturbed them, and had reported it in the belief that senior management would be grateful for the information. They concluded that it was management’s response that shaped the potential public whistleblower’s subsequent actions, and that it seemed that most whistleblowers went outside their organisation only after it began to cover up the wrongdoing and intensify its retaliation against the employee (Rothschild and Miethe 1999, 119-20).
Whistleblowing is a high risk strategy, both for the individual and for his or her dependants. This was recognised in the setting up of the voluntary support group, Whistleblowers Australia, in July 1991 due to concern about the victimisation of people who blew the whistle (Lennane 1994). The group would appear to be predominantly comprised of whistleblowers who have suffered for their actions. Ongoing accounts of the personal consequences of whistleblowing both here and overseas (e.g. Anon. 2000), along with evidence about the nature and extent of workplace reprisals, suggest that the existing protection is insufficient. This is of course self evident in states that have no whistleblower protection legislation.
In Australia, the Senate Select Committee on Public Interest Whistleblowing concluded that whistleblowing is a legitimate form of action within a democracy (SSCPIW 1994). Evidence to the effect that some one third of American employees believe that they have witnessed unethical or illegal activity at work suggests that employees have an enormous potential to detect and control waste, fraud and crime in the workplace (Rothschild and Miethe (1999, 112).
Whistleblower protection is first and foremost a public policy issue, and more effective measures to protect those who blow the whistle on malpractice than exist at present are required. A three part strategy is called for. In the first place, Australia-wide legislation is needed to standardise whistleblower protection, commencing with the public sector where there is no question that a public interest case exists. Second, it will be necessary to change the often secretive and subtly authoritarian culture of much of the public sector. Third, it will be necessary to encourage a cultural change within the private sector in respect of whistle-blowing, and to consider seriously the possibility of legislation in this regard.
In respect of public policy, two things stand out. First, it needs to be more widely realised that the scope of whistleblower legislation varies greatly between the various states and territories, ranging from the plausibly effective to the non-existent. The existence of these anomalies needs to be addressed frankly with a view to eliminating them. There is an argument that whistleblower protection is severely curtailed due to government fears of political embarrassment (De Maria 1995). For example, a Victorian Democrat motion to amend the Public Service Bill 1997 so as to provide for whistleblower protection was not supported by either side of the House (Murray and Allison 1998).
In the absence wide debate, it is hard to resist the suspicions of De Maria and others that political motives of fearful self-interest underpin the arguably excessive delimitations built into some of the present legislation. There is a solid argument for a single Commonwealth Act covering all states and territories, and indeed such action was recommended by the report of the 1994 Senate Select Committee on Public Interest Whistleblowing (SSCPIW 1994). Britain introduced a Public Interest Disclosures Act in 1998, and Australia should follow its lead with determined action at the national level.
Second, it must be decided to what extent legislation will protect whistleblowers who go to the public media. Whistleblowers need adequate protection where they are attempting to prevent or disclose serious malpractice or harm. Suppose an employee discovers a preventable major safety or environmental threat, such as an inadequately planned demolition or an intention to dump waste. If an internal alert has met with rejection, external disclosure may be the only way to prevent an event from occurring.
Whistleblower legislation should therefore recognise that in some circumstances, going to the media may be an appropriate step. It should encourage the courts to consider that there may be validity in going public, and provide a substantial level of protection against and redress for victimisation as a result of whistleblowing outside an organisation. Such legislation in itself will not ensure that external disclosure is effective. Media decisions are made primarily in terms of newsworthiness rather than on the basis of public interest per se. But it should offer protection to those with legitimate concerns who feel, due to time constraints or the degree of potential or ongoing harm, that going outside their organisation is the only way to have malpractice addressed.
My second point concerns change within the public sector culture. ICAC has been making inroads here, but there is strong evidence of entrenched resistance in the low knowledge of the existence of whistleblower protection, especially among lower strata employees. This will not be solved by training programs alone. The fact that persons who have been public sector employees for more than a year were less likely to report malpractice than those who had been in it for less than a year speaks volumes about the entrenchment of unhealthy microcultural values. Due to the good work of ICAC in this regard, NSW appears to be the most advanced state in this area - the rest of the country has a long way to go.
As public sector researcher Lisa Zipparo has stressed, public sector managers need to ensure that their organisational culture is such that employees have faith in their managers to respond appropriately to reports of corruption and will do their best to protect them from any form of reprisals. She concluded, ‘It is imperative that organisations fully embrace the spirit of protective legislation before such legislation can be utilised as a vehicle for encouraging public sector employees to report wrongdoing’ (Zipparo 1999, 84).
It still needs to be determined whether there is a serious commitment to transparency, openness and fair dealing within the public sector agencies at the senior level. If there is, there needs to be a mechanism of accountability by which senior staff are held responsible for failure to implement and actively support a culture that is determined to disclose and root out malpractice and reprisal at whatever level it occurs. Given the conservative nature of public sector organisations, and research findings on the treatment of whistleblowers that has historically transpired within them, such change is unlikely to occur, or even to be able to occur, without legislative support.
In the private sector, companies need to realise that the establishment of effective whistleblower policies can do much to deal with malpractice when it is disclosed and before it may enter the public arena. If whistleblower policies are genuinely effective, individuals will tend to take pride in their organisation’s determination to address malpractice. If internal disclosures are acted upon, the chances of public disclosure are also minimised. Case studies of organisations such as Sundstrand (Benson and Ross 1998) show that this can be done. If whistleblower strategy can be approached constructively as a risk management tool, the likelihood of reputation damage caused by external whistleblowing should be lessened. But as with the public sector, legislative initiatives are needed to make whistleblowing a priority before action is likely. There is also a public interest angle to private sector whistleblowing that justifies legislative interference in this area.
Anomalies between the Corporations Law of South Australian and Queensland and public interest whistleblower legislation over the primary loyalties of the whistleblower (McKay 1996) need to be addressed, and consideration given to actualising whistleblower protection at the national level. Section 43J of the British Public Interest Disclosure Act 1998 voids any terms in an employment agreement to the extent that they preclude or restrict the making of a protected disclosure (‘gagging’ clauses), and Australia should consider the national implementation of a similar provision. Finally, if whistleblowing is to be facilitated in both the public and private sectors, management must acknowledge that protective legislation will do little to remove fear of reprisals without the ability and determination to create an organisational culture which is conducive to staff speaking up (Zipparo 1999) and, if necessary, out. National whistleblower legislation is a first necessary step along this path.
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