Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697632568995.pdf (Australia)
corr COMMENTS OF TOM DEVINE, GOVERNMENT ACCOUNTABILITY PROJECT, TO SENATE ECONOMICS LEGISLATION COMMITTEE ON THE TREASURY LAWS AMENDMENT (ENHANCING WHISTLEBLOWER PROTECTIONS) BILL 2017 FEBRUARY 22, 2018 Thank you for considering my views on this significant legislation to strengthen corporate accountability through freedom of speech.
I serve as legal director of the Government Accountability Project (GAP), a non-profit, non-partisan U.S. public interest organization whose mission is service to whistleblowers, those employees who exercise free speech rights to challenge abuses of power that betray the public trust.
As part of my duties, I have formally or informally helped over 7,000 whistleblowers; and been a leader in campaigns to draft, enact, monitor or defend 35 whistleblower laws or policies, ranging from all relevant federal laws to the United Nations, World Bank and Organization of American States policies.

As part of our work, GAP researches the 39 national whistleblower laws, including Australia’s current statute, for compliance with consensus best practices.
This research, and our legal experience and services, are not limited to the public sector and also extend to the United States’ many private sector laws as well as those overseas.

A summary of the research is enclosed as Exhibit 1.

The results illustrate that, while a latecomer at the national level, Australia already is an international leader in whistleblower protection.

This legislation would be a major, further step forward.
It strengthens preexisting rights by removing judgments about a whistleblower’s motives; expands the scope of protected speech, expands the scope of those covered, protects anonymous disclosures, introduces more modern burdens of proof, increases penalties and requires internal whistleblower policies.

Unfortunately, without further modifications the legislation still will not provide realistic protection.
These comments are offered in support of recommendations by Professor AJ Brown of Griffith University to achieve that objective.

As a co-founder of the International Whistleblower Research Network and Board member of Transparency International, Professor Brown has unsurpassed credibility as a globally recognized expert on this issue.

More significant, however, is that his recommendations are consistent with best practices currently not included in the bill, as well as GAP’s four decades experience.
The analysis below summarizes why these recommendations are necessary for the rights to work as intended.

Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017Submission 23 DUTY TO PREVENT One of Professor Brown’s recommendations highlights a recent Australian advance that goes beyond current international best practices – liability for failing to prevent retaliation.
Nothing could have more impact with less resource burdens than expanding accountability through a duty to prevent, enforced by liability.

The primary factor for effective whistleblower protection is leadership.

The requirement for agency leaders to create a safe environment for the merit system is a cornerstone of the U.S. Civil Service Reform Act.

5 USC §2302(c) It is routinely emphasized in speeches, rhetorical commitments and endorsed in memoranda.
Unfortunately, with rare exceptions, leadership and an infrastructure of support training have not advanced beyond lip service.

Forty years after passage of U.S. whistleblower rights, a majority of federal employees do not when they have them, and a majority of federal managers do not know when they violate them.

There is no proactive effort to foster an identity of whistleblowers as an organizational resource, instead of their traditional identity of organizational threat.
The latter ensures retaliation will be the knee-jerk reaction to disclosures.

The former strengthens the momentum to replace retaliation with a problem solving dynamic.

The reason the environment has not changed from retaliation to problem-solving is that there is no accountability for loyalty to traditional free speech repression.

It is difficult to replace deeply-engrained patterns of retaliation.
Nothing could more effectively motivate organizational leaders and managers than putting teeth into prevention.

Other recent legislation passed by the Australian Parliament – the Fair Work (Registered Organisations) Act 2009 §337BB as inserted in 2016 – contains an internationally important precedent by explicitly allowing for whistleblowers to recover on the basis of a failure to fulfil such a duty of prevention and support.
The inclusion of such a basis for recovery in this bill would therefore not only make sense but cement Australia’s position as world leaders on this important issue.

PUBLIC FREEDOM OF EXPRESSION The bill only permits “emergency disclosures” to the media or other public audiences where there is “imminent risk of serious harm or danger to public health or safety, or to the financial system, if the information is not acted on immediately” (§1317AAD).
This would be one of the world’s narrowest channels for public freedom of expression.

Secrecy would be the rule, and transparency the rare exception.

That is self-defeating for any whistleblower law, whose point is accountability through transparency that serves the public’s right to know.

In the corporate context, that often means the investors’ right to know.

It takes pressure from those who are effected by abuses of power for politicians and institutions to act.
That pressure cannot occur if the public, including victims, remain ignorant.

Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017Submission 23 The restrictions also will cripple the strength of legal protections.

GAP’s experience is that, to be effective, legal rights must be reinforced with public and political support.

Even with the best laws, traditional litigation is a lopsided, unfair fight due to the resources imbalance and drain alone.
In our experience, public solidarity is as significant as official rights.

Without expansion, the law will be handicapped both in terms of public policy and justice.

As a rule, U.S. corporate whistleblower laws protect any “lawful” disclosures, which permits routine public freedom of expression.

Even the Whistleblower Protection Act for federal employees protects public freedom of expression unless specifically prohibited by statute, such as the Trade Secrets or Privacy Act.
In Department of Homeland Security v. MacLean, https://www.supremecourt.gov/opinions/14pdf/13-894_e2qg.pdf., the U.S. Supreme Court by a 7-2 decision upheld media whistleblowing in a case where an Air Marshal publicly exercising the freedom to warn may have forced action that prevented a more ambitious rerun of 9-11.

(Canberra was one of the Al Qaeda targets the whistleblower’s public warnings thwarted.)

While many European nations make public whistleblowing the exception, most are much broader.
Common additional criteria are destruction of evidence, fear of retaliation, conflict of interest, failure to act, and imminent illegality.

Serbia has an effective compromise that prevents whistleblowers from going behind the system’s back but preserves public transparency.

In that nation the whistleblower must make the first disclosure to a corporate or government authority, but then if dissatisfied is free to go public without further delay.
MODERN BURDENS OF PROOF Burdens of proof are the rules of the game for how much evidence it takes to win.

As a result, balanced burdens are a prerequisite for a fair day in court.

The bill properly introduces the concept of reverse burden of proof.
The provision needs further modification, however, to achieve best practices which have been adopted in the United Nations, the Organization of American States, the World Bank, the Inter-American Development Bank, the African Development Bank and the United States, among others.
These comments advocate the whistleblower’s burden of proof for a prima facie case to be demonstrating that protected activity was a “contributing factor” to the challenged action; and that the employer’s reverse burden be to prove by “clear and convincing evidence” that the same actions would have occurred for legitimate, independent reasons in the absence of whistleblowing.

A law journal article detailing the public policy bases for these boundaries is attached as Exhibit 2.
The reasoning is summarized below.

Prima facie case—the whistleblower’s burden of proof The bill specifies that the whistleblower’s burden is met by “adducing or pointing to evidence that suggests a reasonable possibility” that they have suffered victimising conduct, whereupon the respondent bears the onus of proving that the claim is “not made out….” Part of the employer’s defense is not having knowledge of the disclosure.
Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017Submission 23 In U.S. law, the whistleblower’s burden includes three steps – 1) the whistleblower engaged in protected activity; 2) the employer knew of should have known of the disclosure; and 3) the disclosure was a contributing factor in causing the challenged action.

This structure differs from the Australian model, but those differences are not the most important.
U.S. laws grant victory for the “knowledge” element: if the employer “should have known” of the disclosure.

This means that the “don’t want to know” defense is irrelevant, if the whistleblower’s speech raised issues relevant for a manager’s watch.

It is known as the “cat’s paws” doctrine.” “Nexus” in U.S. law is the third element, to establish that there is credible evidence an alleged discriminatory act occurred because of whistleblowing.
The standard is known as “contributing factor,” which is defined as “any factor, which alone or in combination with other factors tends to affect the outcome in any way.” This is basically a relevance standard, which is met when whistleblowing is an issue not dismissed as irrelevant for an employment decision.

The premise for this standard is a zero tolerance for illegal considerations to be part of the mix when an employer acts.
It can be met due to circumstantial evidence, such as hostile or discriminatory behavior, or due to a short time lag between constructive knowledge of protected activity and the challenged action.

The employer’s burden by clear and convincing evidence At this point the burden of proof shifts to the employer, to prove with clear and convincing evidence that it would have taken the same action for legitimate reasons in the absence of whistleblowing.
Clear and convincing evidence is a high burden, estimated in a poll of U.S. as 70-80% of the record.

The reasons are twofold: 1) the employer already has been found guilty of at least a partially illegal action, so there should be some accountability.

2) The employer has a large advantage in terms of access to records, witnesses and resources, compared to an often exiled, unemployed whistleblower.
These modern burdens of proof do not merely even the playing field in theory, but have been effective in reality.

In U.S. laws, under standards of the kind proposed by this bill, the success rate for decisions on the merits, in favour of disadvantaged whistleblowers, was only 2- 5%.

With the modern burdens of proof as outlined above, the range has increased to 25-33%, which is a far more realistic and effective success rate.
ELIMINATING THE REQUIREMENT FOR RETALIATORY MOTIVE Professor Brown’s recommendation not to require retaliatory animus or victimizing ‘intent’ as a prerequisite for relief is well-taken.

This principle has been a noncontroversial premise of U.S. whistleblower law since 1989.

Further, the norm among international statutes is to protect whistleblowers if there is any causal link between protected conduct and the challenged action, not limited to intent.

The reason is fundamental.


While retaliation and hard feelings frequently are part of the response to whistleblowing, they are not relevant factors for the law’s public policy goals.

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017Submission 23 point of whistleblower laws is to provide safe channels to challenge abuses of power.

In terms of the chilling effect that these laws seek to thaw, it does not matter whether or not there were hard feelings behind firing an employee.
His or her career is just as dead, even though the termination was “nothing personal, just business.” An effective whistleblower law must shield against discriminatory consequences that scare employees into silence.

From a public policy perspective, hard feelings simply are not relevant.

GAP, and I, are available to provide supporting citations or further research to support any of the analysis in these comments.
Adjunct Law Professor Tom Devine, D.C. School of Law Legal Director Government Accountability Project (GAP) Washington DC, USA Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017Submission 23