As mentioned in our previous article, a report from the Commonwealth Parliament on Whistleblowing Protections (Report), released at the end of 2017, recommended that whistleblower protections across public and private sectors should be standardised. This recommendation affects all government and non-government organisations including schools. The recommendation also comes after other recent reports which show that the education sector needs to improve its approach to whistleblowing practices and encourage people to speak up about inappropriate or illegal conduct in the workplace, which includes suspected child abuse or grooming.

Background to the Report

The Report focused on whistleblowing protections as a whole across both public and private sectors and found that whistleblower protections remain largely theoretical with little practical effect in either the public or private sectors. According to the Report, this was due to the near impossibility under current laws of:

• protecting whistleblowers from reprisals (i.e. from retaliatory action)
• holding those responsible for reprisals to account
• effectively investigating alleged reprisals
• whistleblowers being able to seek redress for reprisals.

The Report also identified that the current legislation for whistleblower protections was fragmented, inconsistent and confusing. The Report made 35 recommendations including that there be:

• consistency of whistleblower legislation across all sectors including not-for-profit (NFP) and education
• a broadening of the definition of "reportable wrongdoing"
• a broadening of the definition of "whistleblowers" to include current and former staff
• a tiered approach to internal, regulatory and external disclosures
• provisions for anonymity across all sectors including NFP and education
• mechanisms to combat reprisals including protections, remedies and sanctions
• the removal of the good faith requirement for making whistleblowing disclosures (meaning that a whistleblower’s subjective motivations for making a disclosure will no longer be under examination)
• the possibility of introducing a rewards scheme to incentivise potential whistleblowers
• the establishment of a Whistleblower Protection Authority to provide oversight and guidance.

Following the Report’s release, the Minister for Revenue and Financial Services released new legislation which deals with both tax and corporate whistleblowers, with a view to releasing legislation applying across all sectors as soon as possible.

New Corporate and Tax Whistleblowers Legislation

The aim of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Cth) (the Bill) is to improve the effectiveness of the existing protections for corporate and tax whistleblowers through enhanced definitions, clearer protections and harmonised remedies for breaches. In particular, the Bill:

• extends the group of people eligible to make disclosures who are then eligible for protection
• broadens the types of wrongdoing eligible whistleblowers can make disclosures about, for example, the Bill refers to disclosures about "misconduct" or "an improper state of affairs"
• expands the group of people who can receive a whistleblower’s disclosure, including the Australian Federal Police and, in limited circumstances, a journalist or Parliament
• removes the requirement that the whistleblower’s disclosure must be made "in good faith" and replaces it with the requirement that the whistleblower has “reasonable grounds” to suspect wrongdoing
• allows anonymous disclosure
• strengthens the immunities available to eligible whistleblowers
• increases penalties for both individuals and corporations where a whistleblower’s identity is revealed without consent
• creates a civil penalty and allows for criminal prosecution where eligible whistleblowers have been victimised
• requires public and large proprietary companies to maintain a policy complying with the Bill and any related regulatory guides and imposes penalties for failure to comply.

Despite no draft legislation being presented yet for the NFP or education sectors, the Report states that “effective whistleblowing provides an essential service in fostering integrity and accountability while deterring and exposing misconduct." Schools should pay attention to the progress of the Bill and expect to see similar provisions in legislation in relation to the NFP and education sectors soon.

Child Protection and Whistleblowing - the National Catholic Safeguarding Standards

Schools are not immune to fraud, corruption, bullying, harassment or child abuse, all of which can be appropriately managed through a whistleblowing program, among other procedures and policies at a school. Key features of a whistleblower program may include:

• clear objectives about the purpose of the program
• guidance on what conduct is reportable conduct (e.g. conduct that is illegal or breaches any code, law or regulation applicable to the school)
• allocation of resources to implement and affect the program (e.g. appointing a Whistleblower Protection Officer and establishing an anonymous, independent/external reporting line such as that offered by Your-Call).

Many Catholic non-government schools will be familiar with the release of the draft National Catholic Safeguarding Standards (CPSL Standards) by the Catholic Church’s safeguarding body Catholic Professional Standards Ltd (CPSL) in May 2018 and as we reported in our previous article. Like the 10 standards suggested by the Royal Commission into Institutional Responses to Child Sexual Abuse, the 10 CPSL Standards also include a focus on child safe environments. However, the CPSL Standards also make explicit reference to schools requiring whistleblower policies and programs, specifically in:

• Standard 1 (Committed leadership, governance and culture) - which references whistleblowing as part of a strong child safe culture to enable staff to raise suspicions of unacceptable behaviour towards children
• Standard 5 (Robust human resource management) - which states that whistleblower processes are an essential part of the induction process in a school with practices to safeguard children
• Standard 7 (Ongoing education and training) - which states that specific information on reporting obligations, complaint mechanisms and whistleblowing should be part of refresher training for schools with practices to safeguard children
• Standard 9 (Policies and procedures to support child safety) - which requires that safeguarding practices be added to all relevant policies and procedures including whistleblowing.

With the inclusion of whistleblowing policies and procedures in the Draft Standards and forthcoming legislation regarding whistleblowers, schools should be preparing for development and/or implementation of their own whistleblower policy or program and procedures.

Whistleblowing in Schools

Schools should adopt a form of whistleblower program or policy that is appropriate to their culture and particular circumstances. The most effective way to ensure that a whistleblower program operates successfully is by ensuring that the tone is set at the top. The school board, principal and other key members or employees must unite and recognise their duties to promote a ‘speak up culture’ within the school.

Examples of actions which you can take to encourage whistleblowing at your school once you have a whistleblower program include:

• having a clear training program segmented and tailored to different levels in the organisation
• ensuring that senior management encourage an upward reporting environment
• remaining action orientated. e.g. dealing with good and bad reports, showing that you’re listening and that you ‘walk your talk’.

With a clear whistleblower program or policy in place, schools can be confident that they have taken the first steps towards implementing the framework for a culture that safeguards children.