You’ve probably seen the news: press freedom is under siege in Australia and whistleblowers are being left to fend for themselves in the face of aggressive prosecution.
That’s the lede in the media this week after Australia’s largest publishers blanked out their front pages on Monday in support of the Right to Know campaign, raising awareness about sustained attacks on press freedom by legislators and lacklustre protections for whistleblowers.
The timing is apt for several reasons. As politicians tie themselves in knots trying to square their stated belief in ‘press freedom’ with the ongoing prosecution of whistleblowers such as Witness K and Richard Boyle, thousands of companies are scrambling to line up their ducks behind new whistleblower protection laws for the private sector.
Under new laws which came into effect on July 1, incorporated companies are coming to terms with a new and broadened definition of whistleblower, an extended range of conduct that falls under whistleblower protections, and tougher penalties for wrongdoing.
While the new laws aren’t without critics and don’t apply to the public sector, an additional requirement that all “large proprietary companies” develop dedicated whistleblower policies by the start of next year has generated a wave of compliance-related spending at some of Australia’s biggest firms.
For Andrew McLeish, managing director of Stopline, a business which provides whistleblower protection services to private companies and public departments, it’s boom time.
The business owner, who has been at the helm of the 19-year-old company since 2010, tells SmartCompany his revenues have grown 20% since the end of June as companies look to get compliant with the new requirements.
“It’s been quite hectic,” McLeish says.
“There has been a far greater exposure to the service we offer, and as such, we have seen the most growth the business has had in the past two quarters since the business began in 2001.”
McLeish has brought on two new staff in recent weeks to keep up with demand and is predicting a working Christmas a little over two months out from the policy deadline.
An increasing number of public departments and small companies are also making enquiries, which McLeish attributes to both the new laws a broader accountability shift in society.
“It’s almost become a generational change because people are at the stage in life where they’re saying they won’t put up with things anymore,” McLeish says.
“I’ve seen a real change to the way people use their voice to actually bring to account people doing the wrong thing.”
The renewed demand has prompted the business owner to move up his expansion plans, a strategy designed to ensure his company is able to deal with the influx of new business ahead of an expected rush of laggards in the lead up to January 1, 2020.
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“Even a lot of my existing clients, who I’ve had for 10-plus years, are coming back to revisit and make sure they’re doing what they’re meant to be doing,” McLeish says.
Stopline provides off-the-shelf whistleblower policy solutions for firms looking to ensure their compliance with the new laws or offers customised services such as secure hotlines that companies developing their own policies can utilise.
McLeish and his team set up and operate websites and hotlines for clients that enable their own workers to understand their rights as whistleblowers and even make anonymous reports about wrongdoing through secure channels that are separate to the company in question.
The business owner has also been heading out to speak to corporate boards, getting leaders up to speed about what they need to know about the new requirements.
Whistleblowers remain anonymous unless they stipulate otherwise — even from McLeish, who employs a team of lawyers to assist in vetting claims and ensuring information finds its way to the appropriate parties or regulators.
“[Firms] know the process and they understand the fact that they don’t need to know,” McLeish says of his role in ensuring whistleblower identities are protected.
Are further whistleblower protections needed?
As companies across the country work to develop their own whistleblower policies, the conversation is already turning to whether additional protections for those looking to speak up about corporate or public sector wrongdoing are needed.
Andrew Jewell, principal lawyer at McDonald Murholme, says whistleblower protections in Australia are still seriously lacking, noting the ongoing prosecution of high-profile tax office whistleblower Richard Boyle.
Jewell tells SmartCompany the fact Boyle — who is being aggressively prosecuted by the Commonwealth in connection with his decision to go public with allegations the tax office has misused its debt recovery powers — faces a possible 161-year prison sentence puts a chilling effect on future whistleblowing.
“The question has to be asked: ‘Is there a future disincentive here for whistleblowers?’
“The fact this criminal process is continuing just goes to show what rights that someone in this position has,” Jewell says.
Boyle, who intends to plead not guilty, is currently raising money to fund his defence. His case will be the first major test of protections outlined in the Public Interest Disclosure Act for whistleblowers.
The whistleblower’s case has been high profile, to the extent that an ongoing inquiry into the Inspector-General of Taxation and Taxation Ombudsman (IGTO) has heard testimony in the last week concerning the details of his case, even while his prosecution is still proceeding.
Boyle gave evidence in Canberra last Friday in a closed-door session, only a few weeks after the publication of his heavily-redacted written submission to the Senate inquiry, which claimed the IGTO’s investigation into his allegations was botched.
Last Friday, the IGTO itself conceded it was unable to provide whistleblower-style protections and that its statutory authority was “not designed” to protect whistleblowers — an admission which has spurred on calls for the tax watchdog to be given additional powers.
“It feels a bit toothless,” Jewell says of the IGTO’s stated inability to protect whistleblowers.
“There’s this body created to protect individuals, but then they don’t really have the power.”
Amid the public scrutiny over the circumstances behind Boyle’s case, politicians such as Centre Alliance’s Rex Patrick and others have called on Attorney-General Christian Porter to use his powers to halt the prosecution.
“I would have thought quite clearly the process [the prosecution] should be halted while there’s questions being asked about how we got there,” Jewell says.
Small business ombudsman Kate Carnell has also raised questions about the manner in which Boyle is being prosecuted.
“The response seems to be all out of proportion,” Carnell tells SmartCompany.
Asked to comment on the appropriateness of prosecuting a whistleblower while a Senate inquiry scrutinises the facts related to the case, a spokesperson for Attorney-General Christian Porter said it would be inappropriate to comment.
“This case is currently before the courts and it would not be appropriate to comment while proceedings are continuing,” the spokesperson said.
This story was updated at 9:00AM AEDT October 24.