9. Internal witness support: the unmet challenge

In recent decades, the protection of public interest whistleblowers from reprisals has become a major goal in Australian public administration. Practical theories for how this is to be achieved have, however, been slow to emerge. Much of the commitment to protecting whistleblowers has been confounded by the complexity of the issues that internal reporting provokes in the workplace, as well as by a range of conflicting stereotypes and assumptions about what whistleblowing involves, without the benefit of any detailed understanding of what really occurs.

At the same time, concepts of whistleblower protection have often been focused on the ‘back end’ of the problem. These include affording legal protection, such as relief from criminal or civil liability, and other responses such as the criminalisation of reprisals themselves. While important for their facilitating and deterrent effects, these responses serve only a likely minority of cases, in which whistleblowers have persevered to the point of attracting heavier risks or have cases fitting tight criteria for prosecution. Most importantly, these remedies are tailored to circumstances in which damage has already been done and in which the whistleblower has already become the victim of reprisals or other conflicts. Once experienced, these are likely to be problems from which an individual public officer’s career and wellbeing might never fully recover, irrespective of legal protection and remedies. Little guidance has been available on how to minimise the number of public interest whistleblowers who find themselves in this position in the first place.

This chapter describes the extent to which Australian public sector agencies are making progress in pursuing this last, complementary approach to the risks faced by whistleblowers: the development of systems and procedures to help support and guide employees who report wrongdoing, as well as other employees, through the complex issues that inevitably accompany many whistleblowing cases. It therefore addresses the second of the two most crucial responses to whistleblowing in any agency—Chapters 5 and 8 having already addressed investigatory outcomes and capacity. How well are agencies addressing the risks of reprisal and other internal conflicts, managing the welfare of whistleblowers and remedying such problems that their best efforts have been unable to successfully prevent? To what extent is internal witness management becoming less of a secret ‘art’ and more of a ‘science’ (Brown 2001)?

The first part of this chapter examines the evidence provided by participating agencies about their internal witness support strategies—in response to the agency survey and, in the case study agencies, through the reported experiences of respondents to the internal witness, case-handler and manager surveys. The analysis outlines how many public sector agencies have procedures and organised systems for internal witness support and the scale of these systems, in terms of how many people they assist and how those people come to be supported.

The results show that organised systems for supporting and protecting internal witnesses are in relative infancy. Only 54 per cent of all agencies surveyed had relevant procedures and only 11 per cent of all agencies surveyed had a formal internal witness support system. Moreover, even within the group of case study agencies that did have a higher level of informal and formal systems, only a very small proportion of public interest whistleblowers were estimated as having ever come into contact with those systems. For these agencies, the number of employees who received organised internal witness support of this kind equated to perhaps 1.3 per cent of all public interest whistleblowers in those agencies and 6.5 per cent of all public interest whistleblowers who indicated via the research that they were treated badly by management or colleagues.

The reasons for this low take-up of organised or dedicated support services, even in the case study agencies, are likely to include:

The second part of the chapter documents the sources of support experienced by public interest whistleblowers and the types of strategies or methods used. These analyses draw on data from the case study agencies. Not surprisingly, given the first results, the main sources of support that currently prevent more whistleblowers from suffering more than they do are not organised support programs, but informal social and professional networks, including family, friends, colleagues, union officials and supervisors. For those whistleblowers whose experience becomes more difficult, some sources of support, including professional counsellors and more formalised assistance programs, become more important, but supervisors, managers and investigation agencies become increasingly less so.

These analyses confirm the low uptake to date of more formalised support programs. They also reveal that case-handlers and managers—while not excessively optimistic about their own success—nevertheless continue to overestimate the extent to which organised or official sources of support are helping prevent worse outcomes. In other words, the extent to which whistleblower support is currently reliant on informal, social and professional networks does not appear to be properly appreciated. This creates a high risk that support will fail in any of the many circumstances in which the dual role of direct supervisors and line managers, described in Chapter 7, can turn from positive to negative. There are also signs that most support strategies can be somewhat reactive and attuned to bolstering the coping skills of whistleblowers in order to help them ‘tough out’ any difficult situations, rather than geared to management intervention against the sources of workplace conflict.

Third, the chapter examines the measures taken by agencies to assess the risks of reprisal and other major problems in whistleblowing cases and to respond to those risks should they be realised. These results provide like evidence that agency systems are currently largely reactive. In the majority of agencies, there is insufficient focus on thorough assessment of cases for the risks of what might go wrong, as opposed to providing support in the hope that nothing will. The reasons for this include a lack of prior data about the nature of the risks, such as would enable a more coherent approach to assessment. They also include, again, a lack of the internal management information systems needed to enable case-handlers to engage supervisors and other managers in an effective risk-management approach, by knowing more about more cases earlier, rather than waiting for problems to arise.

Finally, the analyses also show that when reprisal risks are realised, agency case-handlers and managers do not currently regard themselves as very well equipped or well placed to deal with them. Their evidence confirms the indications from Chapter 5 that, generally, allegations that whistleblowers have suffered reprisals or other management lapses are not currently handled well. The most common reasons for the fact such allegations are only rarely substantiated are not that reprisals have not occurred, but a range of difficulties in investigation, especially relevant to the fact that most reprisals are not acts for which individuals can be held culpable to a criminal standard of proof, but rather management reprisals and institutional reactions. Overall, the evidence indicates the need for a fresh approach to the handling of whistleblowing cases in which questions arise about the adequacy of the management response, including a new or different relationship between line and integrity agencies.

A major aim of internal witness support strategies is to reduce the need for whistleblowers to take on an adversarial role when they disclose information about public interest wrongdoing—either in the course of the investigation or as instigators of their own support or as prosecutors of their own cause should they suffer detriment as a result of reporting. Instead, the aim is to enable public officials to play a more ‘instrumental role’ in the public sector’s integrity systems (Whitton 1996) in which their duty is done, wrongdoing is addressed and rectified and they are able to emerge from their reporting role without undue stress and without having experienced, or caused, undue conflict. The term ‘internal witness’ itself, introduced in Chapter 1, is intended to connote this more instrumental role. The corollary of this role is that public sector agencies and the wider integrity system must accept a greater responsibility for ensuring the welfare of those who report and face up more rapidly to circumstances in which internal witness support requires more active intervention, or, should this fail, other remedies. These analyses suggest that while the prospects for greater success are good, the public sectors studied have a long way to go.