Boeing death a stark reminder of the need for a Whistleblower Authority

The reported suicide of Boeing whistleblower John Barnett in Charleston, South Carolina (US), is a reminder of the need for reform in Australia. Lendlease whistleblower Tony Watson proposes a Whistleblower Authority.

According to the BBC, John Barnett had died from a “self-inflicted” wound on 9 March, and police were investigating. In the days before his death, he had been giving evidence in a whistleblower lawsuit against Boeing, where he had worked for 30 years. Boeing’s production quality issues are well documented.

In Australia, following the PwC tax leaks scandal, the Government has introduced a Bill to extend whistleblower protections to cover disclosures made to the Tax Practitioner board. A comprehensive review of Australia’s tax and corporate whistleblower laws will commence in July.

Proposals for strengthening whistleblower protections will include extending its breadth – who and what is covered, at what stage, and on what basis. The review will weigh the introduction of a Whistleblower Authority or Commissioner, whether there should be a ‘duty’ to blow the whistle, and whether we should introduce a financial incentive or bounty system as is in use elsewhere, including in the US.

It is in our interest as a society that we protect whistleblowers. Professor AJ Brown, Australia’s renowned expert on whistleblowing, recently testified in Canberra: “Since I last appeared before this committee in 2017, we have certainly completed a lot more research which confirms that whistleblowing is the single most important and significant way in which wrongdoing comes to light … It does not matter which industry or which sector of the economy, or which institutions we are talking about.”

The best defence, and the best deterrent, against wrongdoing of all types, is the whistleblower.

Yet there has never been a successful whistleblower case in Australia.

Lendlease whistleblower and lawyer Tony Watson – the law is failing to protect whistleblowers

I called the Lendlease double-dipping tax scandal for which Lendlease has belatedly raised a contingent liability in its most recent accounts. I commenced an action under our whistleblower laws against Lendlease and PwC in April 2022.

Why a Whistleblower Authority?

Having experienced first-hand the pursuit of whistleblower protection, I think it is imperative that we introduce a well-funded and well-resourced Whistleblower Authority. Here are 5 reasons:

1. The inequality of arms

In whistleblower cases, the wrongdoer is a big corporate or government. They are powerful opponents with deep pockets. Directors use shareholder money to defend themselves and crush the whistleblower. The expense, cost risk, and delays in seeking protection should not be left solely to the whistleblower.

2. A Whistleblower Authority would better protect the whistleblower

One goal of big corporates in disparaging the whistleblower is to deter others from speaking up. In China, this tactic is called killing chickens to show monkeys.

The other equally important goal is to intimidate and humiliate the whistleblower. When a whistleblower calls out a fraud or misconduct of a big corporate, the corporate responds by questioning the psychological stability and moral character of the whistleblower. C. Fred Alford, in his book Whistleblowers: Broken Lives and Organisational Power, calls this the “nuts and sluts strategy”:

The key organisational strategy is to transform an act of whistleblowing from an issue of policy to an act of private disobedience and psychological disturbance.

The tragic death of Boeing whistleblower John Barnett is evidence of the pressures brought to bear on whistleblowers. A Whistleblower Authority standing with the whistleblower will constrain such attacks.

3. Has the message been heard?

A considerable frustration for many whistleblowers is that they never know if the employer or regulator has effectively dealt with the disclosed crime or misconduct or if it has been swept under the carpet. A Whistleblower Authority should have powers to obtain information on the investigation of the wrongdoing and share that with the whistleblower.

Big companies who money launder, pollute our waterways, blow up sacred sites, or commit tax fraud should not be able to hide behind secrecy provisions.

4. Avoiding whimsical court decisions

The Federal Court’s decisions on our whistleblower laws are whimsical; a Whistleblower Authority would ensure protection is found and given, not undiscovered and denied.

The whistleblower protection in the Tax Administration Act applies to disclosures made at or after 1 July 2019. I made multiple disclosures after 1 July 2019, but I still have no protection.

With the greatest respect to the Federal Court justices, they have rewritten the statute. On the Federal Court reasoning, the application of the provisions is governed not by the timing of protected disclosures, which on the face of the legislation is the sole test, but by the timings of the retributions effected by Lendlease and PwC.

Consider this: Lisa and Linda are identical twins, working for BigBank. They become aware of a money laundering scheme. On 30 June 2019, they both tell their boss. Lisa is dismissed immediately. Linda is dismissed the following day (1 July 2019). They tell the ATO on 1 July 2019. In the Federal Court’s view, Linda is protected. But Lisa is not protected. The only difference between them is the date of dismissal. The timing of their disclosures doesn’t matter. Perhaps if a Whistleblower Authority had run this case, the outcome would have been more conventional.

5. The High Court rules in favour of the rich and powerful

Last November, the High Court revised its process for dealing with special leave applications. If you, as an applicant, are represented by a barrister, your application will be read by all seven High Court justices. If you make an application yourself, it will be read by two of the justices. Who engages barristers? Rich individuals and big corporations.

It is one rule for the rich and powerful and another rule for the rest of us.

I am left to wonder whether special leave would have been granted if all seven justices had read my application. A Whistleblower Authority will engage barristers and level the playing field.

A Whistleblower Authority would ensure that concerns raised by whistleblowers are acted upon; it would promote good corporate governance and discourage misconduct and malfeasance; it would protect the public purse; and it would ensure protection is genuinely available to all whistleblowers.

Whistleblowers and the Administration of Injustice | The West Report