Friday, July 22, 2022

Crime and Punishment - Protecting Whistleblowers

As in Many cities and countries around the world,Tasmanians flock to a protest against the imprisonment and extradition of Julian Assange, among the world's biggest whistleblowers

 

It was International Whistleblowers’ Day on the 23rd. of June in most parts of the world except for the USA which celebrates it on 30th of July, so you could say that I’m at least early for that one. The importance of whistleblowers cannot be underestimated in terms of bringing wrongdoing, corruption and fraud to light. Whistleblowers help to avoid health and environmental disasters and the loss of public funds, yet in many countries whistleblowers are harrassed, persecuted, gaoled or worse and lack the protections which they sorely need. 

Legal Protections for Whistleblowers

Recognising their importance, the UN incorporated protection of whistleblowers in the Convention against Corruption signed by 140 countries in 2003 and this has since been signed and ratified by 137 countries including the USA. It has also been acknowledged in the African Unions Convention, the Organisation of the Americas and others groups such as the G20, the OECD, APEC and the European Union.

Unfortunately, while many countries pay lip service to protecting whistleblowers, the reality on the ground looks very different. Even the UN which is supposed to uphold the limited laws it espouses, has come under fire for not protecting the anonymity of whistlebowers and allowing retaliation against them, particularly in regard to allegations of corruption, mismanagement and sexual abuse. 

Globally, some 59 countries have enacted laws, but most do not adequately protect whistleblowers and fall far short of encouraging them to come forward. Among G20 countries they are most comprehensive in the USA and South Korea where they include provisions for anonymous or confidential reporting though rules are complex and vary greatly. Mexico, Norway and Portugal for example, only allow government employees, contractors and suppliers to report, but anyone can report wrongdoing in the USA and South Korea. While confidentiality is strong in India, only public servants are protected. Almost all jurisdictions lacked external channels and dedicated oversight for receiving and investigating complaints.

Europe

Transparency International has been urging members of the European Union to incorporate whistleblower protections more fully into national law since 2020 but adoption and enforcement have been patchy with only Denmark, France, Sweden and Lithuania having complied to date. Nevertheless, many countries including Denmark, Sweden and France still rely on internal channels within companies for resolution, rather than a dedicated independent agency. Lithuania and Latvia go further than the EU directive by having explicit protection.

A recent survey found that only one in four Europeans report wrongdoing, only half knew where to take a complaint, only 47% felt safe exposing malpractice and many regarded whistleblowing itself negatively. For this reason Transparency International is offering technical, legal and advocacy support to encourage people to speak up via its online reporting platform. It is also setting up technical, legal and advocacy systems within countries including Bulgaria, Slovenia, Hungary, Romania and France.

The USA

The USA has had Whistleblower Protection since 1778 and remains the world leader. It has had a Whistleblowers Centre since 1988 and there are more than 50 laws covering fraud, violations of health and safety and even international laws such as those around money laundering, bribery and pollution by ships at sea. It has dedicated agencies and secure reporting channels and there are even financial rewards for successful prosecutions in cases of financial crime.  Despite this, several whistleblowers have received gaol terms Chelsea Manning was only recently released, Edward Snowden remains in exile in Russia and extradition orders are still out for Julian Assange.

Canada

Canada's whistleblower protections have been called' abysmal' and among the worst in the world. While Canada theoretically has protection against retaliation for public servants who speak out (not private sector employees), the reality has been disappointing. As the following video notes, of 306 people who have reported violations, only 8 people have been able to have their case heard by a tribunal. Of those, only one case made it to court and the complainant lost. There is no protection either for public sector employees who speak to the media.

 


Australia

In contrast to Canada, South Korea and Japan, Australia forbids release of information by public servants and can punish them with up to 7 years goal. The official reason for this is to protect national security and to maintain trust in government, but the general feeling is that the purpose of such legislation has more to do with protecting the interests of politicians, rather than Australia's or to prevent harm to the public. It also requires that complaints be dealt with internally first, which has on occasion lead to retaliation against the employee or quite simply cover -ups. There are currently moves afoot to prevent the excessive use of Non -disclosure agreements beyond those which relate to proprietary information but which are being used to silence those who know of wrong doing.

To its credit, following its recent change of government, Australia has already released whistleblower Bernard Collaery after many years of indefinite detention for revealing the bugging of Timor – Leste government for the benefit of a mining company. A witness related to this event is also set to be released, though another remains in gaol. Another trial is still ongoing and David McBride, who blew the whistle on war crimes in Afghanistan also faces a long prison term. See their stories here and urge Attorney -General Mark Dreyfus to drop the charges against them. They are not they parties at fault here.

Australia's biggest whistleblower, Julian Assange is also still in the UK’s Belmarsh prison awaiting extradition to the USA for publishing information about war crimes by the USA. If you would like to help Julian Assange check out the website here.

UK

The UK seems to combine the worst aspects of the Australian and European system i.e. complaints against the Crown or police are restricted and those against companies -except for the most serious ones must be reported internally first. However, there is protection against reprisals by employers and there is also the possibility of monetary compensation when crimes such as bribery or tax evasion are involved. Read more here.

South Korea

South Korea is another world leader when it comes to whistleblowers. It has had formal whistleblower protection laws and a reward system with regard to tax evasion since 1951. In 2008 it introduced an independent commission against corruption and in 2011 it extended its protections beyond the public service to the private sector.

While whistleblowers cannot remain anonymous, confidentiality is strictly enforced with fines up to $US44,000  or 3 years in prison for revealing the identity of a whistle blower. Whistleblowers receive financial support while complaints are investigated and may receive rewards based on successful prosecutions involving recovery of funds or corporate fines. In 2020 alone KRW 5.5 Billion was paid out.

A brief look at Amnesty’s files show that things could be worse. In the Philippines for example, investigative journalist De Lima is still in gaol for exposing Duterte’s extrajudicial killings. An arrest warrant also remains in place against a French Human Rights Lawyer who defended complainants in a money laundering case in Equatorial Guinea or the arrest of the journalist who exposed corruption in Zimbabwe. 

This makes it all the more imperative for developed countries to do better. How can we call such practices out when our own are inadequate? When countries institute more transparency and better anti -corruption measures it also makes them more attractive investment destinations. Funnily enough, the very people who take advantage of lax tax regimes in the countries where they operate, also insist on security, transparency, accountability and the rule of law in the countries where they hide their wealth.

 Better protection for whistleblowers

Whistleblowers are our heroes. They save the public from harm in the form of environmental and health hazards and they expose injustice, fraud, money laundering and other crimes such as corruption and industrial scale tax evasion. We also owe many of our workplace safety laws and consumer protections to them. See a long list at Wiki or some recent US ones here. Canada's whistleblowers are listed here. See for example Chris Wylie's efforts to expose the role of firms such as Cambridge Analytica in influencing political events in other countries including the UK and the USA. I doubt that many people realised the importance of this at the time and how it may have enabled the rise of people such as Donald Trump.

 

 

 

However, many whistleblowers do not receive rewards or acclaim. Sylvie Therrien in the previous video  has yet to obtain any resolution and has since been rendered unemployed and bankrupt, not to mention exceedingly stressed. Others must fear for their lives, their livelihoods and their families, so here is a list of ways to improve protection and encourage whistleblowing based on the best and worst ideas from the various countries which have been looked at combined with Transparency International’s recommendations.  

 

  •  Countries must urgently introduce strong whistleblower legislation which covers both the public and private sector and non profit organisations.

  • Anyone should be able to make a complaint.

  •  Whistleblowers should be able to report to an independent body, well -funded and resourced and with full investigative and enforcement powers. They also need financial, legal and emotional support

  • Failing the latter, companies and public and non -government organisations must have strong internal mechanisms for reporting misconduct
  • It must afford whistleblowers either anonymity or at the very least inviolate confidentiality along the lines of South Korea (above) There must also be strong whistleblower protection against retaliation such as the US and some sections of the UK have, along with effective enforcement.
  • An end to non – disclosure clauses in public office, companies and non- government organisations where they do not directly relate to propriety information.
  • Possibly financial rewards to encourage people to come forward, especially in the case of financial fraud, money laundering and the like. This would also help to overcome cultural resistance to reporting currently seen in the EU and to some extent in Australia.
  • Consider ways to overcome cultural inhibitions about coming forward – e.g. in Australia there is a culture of not “dobbing” – that is, telling tales about others. This should not apply when we are talking about health and safety or the public good. South Korea had a similar problem in that loyalty to the company often trumped the need for disclosure and on an earlier occasion, at least one employee who blew the whistle on misconduct at a large corporation, was subsequently shunned by colleagues. As well, before introducing its new Whistleblower Act of 2011 only 16% of the public knew about the program. In consequence, the government began an intensive campaign to educate the public and its success is measurable by the huge increase in reporting - over 30,000 cases per year by 2019. 

Getting Help

Transparency International 

Transparency International has 100 offices in 65 countries who will provide advocacy and support. Check first if your country has a dedicated office. If not, you can report directly to them.

WIN Whistleblowing International Network

WIN Whistleblowing International Network connects whistleblowers with civil society organisations around the world including the Asia Pacific, Latin America and the Caribbean, Middle East and North Africa, Europe and Central Asia. 

Its current work includes promoting the European Anti – SLAPP conference in October. This is about curbing the power of corporations and wealthy individuals to inhibit people from speaking out or to prevent media organisations and investigative journalists from publishing material through the use of lawsuits and threats of legal action.Click here for more

Australia

Whistleblowers Australia not only helps whistleblowers, but also advocates for reform of the system. Click here for more.  

The USA

For links to specific departments where misconduct can be reported and other useful advice, including international law, click here.

For more on the Department of Labour's Whistleblower Protection Program click here.


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