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Economics Legislation Committee
06/03/2018
Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017

MORRIS, Mr Jeffrey, Private capacity

Evidence was taken via teleconference—

CHAIR: I now welcome Mr Jeffrey Morris. Thank you very much for appearing before the committee today. I invite you to make a brief opening statement, should you wish to do so.

Mr Morris : The first thing I'd like to convey is that whistleblowers are human beings. They're human beings taking on massive corporate machines, and it's a very unequal contest. It's the classic case of flesh against steel, and it almost always ends badly. Whistleblowers' health suffers; their finances and their family suffer. Towards the start of my journey, ASIC said to me that I had whistleblower protection as from today, and, in the next breath, they said, 'but it's not worth much'. My concern is that although this bill is a step in the right direction, it doesn't go far enough. In practical terms, it's probably not going to make a great deal of difference to whistleblowers such as myself.

In my submission to the parliamentary joint committee considering whistleblowing, I set out the extraordinary backchannel smear campaign that had followed me for years that had been perpetrated by the CBA. Several years after I blew the whistle, this cost me an employment opportunity. I can remember how shattered my wife was after all the years that we'd gone through when this happened. Of course, she never wanted me to be a whistleblower in the first place. The thing about that that occurs to me is that, because it's by nature a backchannel smear campaign conducted by PR people to journalists or politicians all off the record, it would be very difficult to prove under this bill.

At the moment corporates like CBA can make examples of whistleblowers and they're free to do so because the corporate regulator has been so weak. I don't think this bill does enough to change that. Again, part of the problem is that it's reliant on a court process where whistleblowers are going to have to prove certain things, and I think in cases such as Dr Koh at CBA, the gambit by organisations like CBA is: 'Yes, we have a whistleblower policy, but we didn't sack him because he's a whistleblower. We sacked him for these other reasons that we fabricated.' When you go to court against organisations like the CBA, you find that legal professional privilege has been claimed over all the incriminating documents. In fact, I think it would actually be better not to enact the bill in its current form than to let it go through, because I suspect that there's only going to be one bite at this cherry, and, once a whistleblower act is in place, everybody's going to say, 'Well, that's been addressed.' The problem is this bill clearly falls a long way short of what's required. I don't want to reinvent the wheel. Professor AJ Brown has shown me his submission to this committee, and I would endorse everything he said, but I'd like to emphasise two key things, and they're points that he's made in his submission.

The first thing is there's a lack of a whistleblower authority to protect whistleblowers, and I would also see that as being interrelated with the need to oversee a compensation regime outside the court system. Part of the problem in my case, for example, is not only did ASIC fail as a regulator, which led to the problem that I was trying to deal with in the first place, and not only did it fail to protect me as a whistleblower, but it also had a conflict of interest in what I was seeking to expose, in that it exposed their failure as a regulator. And, for a long time, they colluded actively with CBA, including testifying to Senate committees to cover up their own failings. So there's a conflict of interest with a lot of these regulators. I think it's the classic case: who guards the guardians? I see a whistleblower authority as being essential to holding government agencies and regulators to account.

The second key point that I want to strongly endorse is the need for a compensation system outside the courts. I would see that as being an interrelated thing with the whistleblower authority and being administered by the whistleblower authority. Again, partly for reasons of red tape, I would actually take the view that a simple bounty system would be preferable to a pure compensation system with a tortuous court process. Having seen my own family suffer through this I have a different view to a lot of people who say, quite rightly, that there are objections to the American system. But when you have walked in my shoes the American system is clearly preferable to the situation we have now, and indeed the slightly different system that this bill would bring through. The court process is simply going to be too fraught and the simple point is that most whistleblowers wind up too broken by their experience to pursue compensation through a court system. In fact, it basically would be making them suffer through it all over again.

On the other hand, there is clearly a need for a mechanism. Institutions like the CBA have demonstrated quite clearly that they will never do the right thing voluntarily. On the contrary, they will go out of their way to persecute whistleblowers. In a situation such as mine, where the CBA victims have received hundreds of millions of dollars in compensation due to whistleblowers, it doesn't seem out of place that the whistleblower should be compensated at least for their own sacrifices in bringing out that outcome. That is not the case at the moment. The problem is that if you continue to rely upon noblesse oblige as the motivating factor for whistleblowers, the simple fact is that most won't come forward. In my case, I saw conduct that was so rank and dishonest I couldn't walk past it. I also saw a case of many people, the weak, being taken advantage of by the strong, and somebody had to stand up and do something about it.

I talk to a lot of whistleblowers—would-be whistleblowers—and only one in 100 would go forward under the current system. The subtle thing about this bill is that it is tied up in trying to put in place a legal process for compensation, among other things. It is such an overly legalistic process that I think the people who have drawn up this bill have perhaps lost sight of the fact that to a prospective whistleblower the prospect of having to navigate a legal minefield with the possibility of getting some compensation is only marginally more attractive than the current situation, and, as I said, the vast majority of people won't come forward.

Just a last comment on the US system. I think the bounty system in the US is actually focused quite clearly on and motivated by what whistleblowers can achieve or what good can come from whistleblowing. They are focused on the results or the outcomes. They are not necessarily that worried about the motivations of whistleblowers, just the outcomes. A key aspect that needs to be focused on is that a lot of good can come from whistleblowing. With appropriate compensation that is readily accessible, and a whistleblower authority to protect whistleblowers and act on their information and regulate the compensation, I believe we could actually clean up a lot of the problems in our corporate sector and indeed even the government sector. There are three things that I think a whistleblower needs: one is that action is taken on their information; two is that they are protected; and three is that they are compensated. A whistleblower authority could make sure that all three of those things happen. I will leave my comments there.

CHAIR: I am interested in the concept of the reverse onus of proof, which is fundamental to this bill. Do you not think that that is particularly good for whistleblowers?

Mr Morris : When you look at the details of that, though, they still wind up—and I would refer to AJ Brown's submission on this—in practice having to prove a lot of things, for example where a respondent has to prove that a claim is not made out. A lot of these terms are very broad. It has various requirements there—for example, that there be sufficient reasons for the detrimental action on the part of the employer, which will come back to that situation where they will allege that there were employment issues. Funnily enough, there always are employment issues. To my knowledge, no whistleblower has ever been sacked for being a whistleblower. There are always other issues. It is very easy for the companies to say that the whistleblowing had no part in their dismissal. Going back to the point I made earlier, this is a practical thing that you encounter in litigating, particularly against giant companies that have made litigation their handmaiden—it is that they will ruthlessly abuse the provisions of legal professional privilege to suppress all incriminating documents. The reverse onus of proof is called a reverse onus of proof but in practice these things often mean the plaintiff winds up having to prove their case, because of the broader issues involved.

Also, there is another section here that relates to public disclosures, which, I guess, was the category I was in. You need to prove that there was an imminent risk of serious harm or danger to public health or safety or to the financial system. I don't believe that in my case I would have satisfied that test, so this simply wouldn't protect me.

CHAIR: Surely it is the employer who bears the onus of proving that a sacking had absolutely nothing to do with the whistleblowing, and that would be very difficult to prove in the negative, I would imagine.

Mr Morris : No, I don't think so. It is a sort of a broad-brush point that there is a reverse onus of proof. I don't know that it necessarily applies as simply as you are saying. In contrast, the simpler and more elegant solution that is employed overseas, or in international best practice, is that the claimant make out a prima facie case that they suffered a detriment. I think you could take a broader view of this and say that I think we all know that whistleblowers suffer detriment. It is part and parcel of being a whistleblower. A lot of the detriments that you suffer are on the back channel, which is virtually impossible to prove. How do you prove that? How do you prove a back-channel smear campaign when people won't going forward? Believe me, I have seen that. In the case of Dr Koh at CBA the same thing happened. In the case of the IOOF whistleblower the company ran an appalling smear campaign against that whistleblower. It would be virtually impossible for the whistleblower to get people to come forward and give evidence about that. So, the full magnitude of the harm, where that smear campaign ends somebody's career, the employer is simply going to deny that that occurred, and the whole thing falls away. But we know it happens. We know whistleblower suffer detriment, so why force of whistleblowers to go through a court process, which, however you structure it, is a very fraught process for most people. Normally, by the time you have been through the whistleblowing process the court process is making them suffer all over again. My view is that the court system is not the answer.

CHAIR: Obviously, compensation is a legal concept. I am not entirely sure how you can get compensation without going through a legal process. How would you suggest that compensation is awarded?

Mr Morris : That is where, technically, I would probably say that, if you wanted to define it, the bounty system is infinitely preferable to a compensation system, because the compensation system would require you, clearly, to go through the court process and jump through various hoops and establish various things. The employer will be able to introduce enough uncertainty into the question as to whether you were sacked as a whistleblower or for other reasons that I have my doubt whether whistleblowers are going to succeed.

With a simple bounty system administered by whistleblower authority, they can look at, say, a case like CBA and say, the bank did the wrong thing, they paid a couple of hundred million in compensation, the whistleblowers all left their employment, no doubt for other reasons, and they've said that they have been persecuted in the ways that whistleblowers normally are. If you look, you can link the bounty system to the outcome, and say, the government department recovered a few hundred million in revenue, or some victims received some compensation, and pay the whistleblower based on the outcomes, without needing to go through that tortuous process of proving their claim through the court system.

CHAIR: Surely I would have thought that protection now afforded in this particular piece of legislation to former employees and to anonymous disclosures would be encouraging from your point of view. The examples that you have cited, that occur to you, occurred under the existing regime, which is exactly what we are trying to fix up with the introduction of this bill. So surely there are aspects of this bill which you would find encouraging. Indeed, many of the criticisms that you have mentioned today come as part of the recommendations of the parliamentary joint committee. The evidence that we've heard earlier suggests that this bill doesn't necessarily prevent any of those recommendations from being implemented.

Mr Morris : Directly prevented—my concern is that in practical terms, if this bill is passed into law, it will become the whistleblower reforms for the next ten years. The impetus for any further reform will simply die, because people will point to this, as you've done, and say, 'We've addressed the problem.'

CHAIR: We've taken the first step to addressing the problem, which I think is the evidence that we've heard.

Mr Morris : Yes, you could say that, but why not do the job properly now? We've had a parliamentary joint committee that made extensive recommendations, most of which are not being implemented in this legislation. What is preventing us from making a revolutionary change or bringing ourselves up to world's best practice in this area in one go? Why would we pursue this small-bite strategy? Part of the problem with this bill is that it's just building on what's there at the moment, which clearly doesn't work—the flawed system that we have.

If you look at the American system and the way that's working and in terms of the outcomes that it can get, I just can't understand why we wouldn’t be doing that. A subtle point, which perhaps gets lost, is that you introduce a very complicated legal process, and most whistleblowers aren't going to be able to understand it, so they may just decide, 'Well, I'm not doing anything.' If you have the whistleblower authority, which I think is absolutely crucial—even if you don't go for the bounty scheme, if you have the whistleblower authority with this compensation regime, then there's somebody there who can guide and help the whistleblower through every step of the process. We're not getting that in this bill. I think it would be a disaster, frankly, if this opportunity to put in place a whistleblower authority was lost.

CHAIR: I just want to clarify one last issue before I pass on to the deputy chair, and that is, are you aware that all bounty systems are also part of a court system; that the regulator takes the company to court and the whistleblower then gets a cut if there's any compensation awarded by the court to the regulator? So the bounty system is in fact part of the legal system. Are you across that?

Mr Morris : Yes, I realise that. The point is that it's the whistleblowing authority that would go there and make the case. Again, it depends on how that legislation is drafted. I'm suggesting that it would be easier to focus on outcomes. For example, rather than even needing to prove fault in terms of persecution of the whistleblower, just focus on the fact that they blew the whistle and got a good outcome. It would make it a lot easier to get from A to B. That's a much easier process, I would have thought, to ratify through the court system what's proposed here.

CHAIR: Thank you, Mr Morris. Senator Ketter.

Senator KETTER: Mr Morris, once again, I just want to acknowledge the incredible sacrifices you've made in trying to bring to light some pretty egregious abuses of the law. Thank you, again, for coming before us. I note you endorse the comments of Professor Brown. I want to be a bit specific about this: Professor Brown has made the comment that there are five issues which need to be addressed in this bill.

Mr Morris : Yes.

Senator KETTER: Do I take from your submission this morning that, unless those five issues are addressed in the bill, your position is that the bill should not pass?

Mr Morris : Yes. There's a huge opportunity here to reform whistleblower law for generations, and, particularly having gone through that parliamentary joint committee process and got a number of clear and excellent recommendations, it seems inexplicable to me why we would be settling for falling so far short of an optimum outcome. I come back to the fact that justification for root and branch whistleblower reform, as opposed to nibbling at the edges, is the fantastic outcomes we can achieve. As I said earlier, in my experience of the people who talk to me, only one in 100 will go forward, and I don't think that will improve markedly based on what's sitting in front of me here. But if you had the full system that Professor Brown is advocating and that I'm advocating, I believe we would see a lot more whistleblowers coming forward. I believe we'd see a lot more corporate malfeasance exposed and a lot more penalties imposed which could fund the compensation for the whistleblowers. That's another point I should make clear; I believe that the compensation or the bounty should be funded by the wrongdoers.

I think we'd clean up our corporate sector and, to a certain extent, our government sector overnight. If this system was working well, I suspect that, after an initial flood of whistleblowers, there wouldn't be that many, because, if you want to talk about reverse onus, you would reverse the position for whistleblowers. At the moment, they are knowingly walking into a bearpit where they're sacrificing their career, probably their physical and mental wellbeing and their family life. Once you turn that around to a point where there's a whistleblower authority with the power to protect them and act on their allegations and award them some compensation for putting themselves at risk that's commensurate with what they're putting themselves on the line to achieve and the outcomes that are going to come, then you're going to completely reverse the current situation. I just can't convey to the committee how strongly I feel about this, because I get emails and I'm contacted by people and they have these incredible stories that they want to tell, but they ask me, 'What's the likely outcome?' and when I tell them, they go away. That's why we're having the problems we're having. We've got a regulator in ASIC in the corporate area that basically doesn't do its job, and the whistleblowers could fix that situation, I think, but, at the moment, they won't come forward. Focus on the potential outcomes. To go back to what you said, yes, I endorse Professor Brown's submission in its entirety. He has talked not just to me but to other whistleblowers, and he's taken that practical viewpoint of people who walked in our shoes and blended it with his rigorous legal academic analysis, and he's come up with what I think is the obvious solution we should be heading towards. And given that he was part of the whole process, I just don't understand why we're even contemplating settling for second best.

Senator KETTER: Can I draw on your personal experience and ask what you think should be required in a company's internal whistleblowing policies?

Mr Morris : More important than the policy itself, I think, is a culture that it's actually fair dinkum. CBA has a copperplate whistleblower policy now, and the Australian Banking Association have got a standard for banking which they've all signed up to. That's all wonderful, but the trouble is, when somebody like Dr Koh—and Dr Koh is the one exception, where I talked to him and I told him what he was facing to do the right thing, where he went ahead and did it, and the bank turns around and says, 'But we sacked him for another reason, so none of the whistleblower provisions in our policy apply to him.' I guess the first criterion is that the whistleblower policy is actually applied, because, for organisations like CBA, it's just meant to sit up on the shelf in the HR department and fill that space. Their first order of business is always to find some other reason to get rid of the whistleblower.

Senator KETTER: Do you think companies in Australia are genuinely engaged in the area of whistleblowing, or is their attitude, in your experience, to do as little as possible and protect their own interests?

Mr Morris : To be fair, a lot of companies are fair dinkum, and that's good. But the trouble is that there are a lot who will never genuinely embrace doing the right thing by whistleblowers. At CBA my feeling is they are still regarded as being the problem and will be hunted down and punished. There are other companies where the board of the company understands that, in reality, the whistleblower is not the enemy; he is the last line of defence in corporate governance. Those companies are taking a more enlightened view. They don't need even this legislation to do the right thing. They can see that it's in their best interests to embrace whistleblowers and benefit from them. I think it was Alan Cameron, the former head of ASIC, who said that you can judge the culture of a company by the way it treats whistleblowers. I think never was a truer word spoken, because a really good company with a really good culture will accept that, if a whistleblower brings something to their attention is wrong, there's been a breakdown in their system and it's thanks to the whistleblower they're getting the opportunity to remedy that. But, with a really rank and corrupt culture, where it's a self-protecting culture, the organisation will close ranks and deny, deny, deny, basically. That's a problem that I think comes from the boards of companies. In my case, I think the board of CBA has failed in its duty to shareholders, aside from anybody else. Their failure to deal with all these problems properly—ultimately it's the shareholders who pay the price. As I said before, I think it comes back to just being fair dinkum and realising that it's not even smart business practice to treat whistleblowers as the enemy. It's counterproductive. It costs you money and it costs shareholders money. I think the answer has to come through the directors on the boards and the shareholders demanding that companies are actually fair dinkum in applying the whistleblower policies that they have and, where there is a crooked culture, where companies don't do that, the management and the boards of those companies need to be exposed and held to account.

Senator KETTER: From what you've seen of the government's response to the PJC recommendations—although formally they haven't responded, I guess this bill is to be seen as part of that response—what's your view about the government's response so far, and how much confidence do you have that they will work on the implementation of the rest of the recommendations of the PJC report?

Mr Morris : I guess I see this as a bit of a parallel thing to the banking royal commission, where the government's finally, kicking and screaming, bowed to the inevitable and had a banking royal commission, but it has scandalously under-resourced it—one commissioner for 12 months. It's kind of like just playing a game of paying lip-service to something. What troubles me is the parallel here—that this is called whistleblower legislation but, compared to what it could achieve, this is just a pale shadow of the real thing. I guess you could say we've got a clayton's royal commission and, in a sense, this is clayton's whistleblower legislation. When you look at the recommendations of the PJC, and indeed, the submission of Professor Brown, it's just apparent that there's so much more that could be so easily achieved. What I don't understand is that the benefits that would flow through it are so massive.

Senator KETTER: During the course of your comments this morning you've talked about the collusion by the regulator, ASIC, with CBA to cover up their failings, as a result of your complaint—

Mr Morris : Yes.

Senator KETTER: What's your opinion as to whether or not that issue of the collusion by the regulator has ever been adequately dealt with?

Mr Morris : No, I don't think—and, again, there was a senate enquiry that concluded quite clearly that—I think they were kind when they said ASIC was a timid and hesitant regulator. The case for reform of ASIC was made out when that enquiry reported back in 2014, and nothing has been done. Not only is the structure of ASIC the same, but most of the key people are unchanged. The culture of ASIC is basically unchanged. Today, they're belatedly doing things, ten years later, that I was trying to get them to do back in 2008. They're beating their chest about what they're actually doing in terms of taking some action now, and the point is, firstly, this action wouldn't have been necessary if they'd done their job properly in the first place, and secondly, it's long overdue.

That's one of the things that's very disappointing to me personally. As I said, what's important to a whistleblower, is that their sacrifice isn't in vein, that action will be taken on it. Obviously, there have been some outcomes from what I did, but I just don't understand why ASIC has been let off scot-free and has been allowed to continue on it's way, where it continues to fail as a corporate regulator and nothing seems to be done about it. In fact, we've even had the Prime Minister and the Treasurer calling them a tough cop on the beat, which, frankly, passes my comprehension given my experience with them.

Senator PATRICK: Thank you, Mr Morris, for attending and sharing your story with us. In some sense, whilst we talk about the need to protect whistleblowers, the laws—and your testimony has alluded to this—ought to be also designed to shape the conduct of both the businesses and the regulator. Do you feel that these laws would achieve that?

Mr Morris : No. Again I come back to the fundamental importance that to put some teeth into this there needs to be a whistle-blower authority to stand up for the whistle-blowers and, as I said, to follow through and make sure that what they're disclosing is acted upon. They can do that. I think a whistleblower authority can do that in a very public way. It can hold the government to account, hold government departments to account and hold employers to account. In my case, I think, if there'd been a whistleblower authority for me to approach, their primary target would have been ASIC as a corporate regulator, looking at what had happened on ASIC's watch, with the resources that presumably a government agency could bring to bear. I believe that that would have resulted in a fundamental shake-up at ASIC because of the fallout that such an agency would have been able to bring about. I think also that after that Senate committee reported—and the Senate committee did a fantastic job in 2014 with that ASIC and CBA enquiry, but the Senate enquiry's resources are as we know, severely limited. So then it passed to the government to implement or take note of the committee's findings. The government decided to let CBA off a royal commission that was recommended, and basically let them off in exchange for a self-administered compensation scheme.

I have on numerous occasions commented on the failings of that scheme, despite the fact that it's endorsed by a bevy of the best independent experts that money can buy. I get a lot of emails from people who've been chewed up and spat out by that self-administered compensation system, and, when you think about it, it's not particularly surprising. But here is the absurdity of that CBA compensation scheme that just surpasses all comprehension. The CBA appoints people's independent advocates for them. You get one of three law firms selected by CBA to represent you. There's a massive conflict of interest built in right there, but CBA got away with that because basically it was handed off to them to administer this scheme. I believe, once again, had there been a whistleblower authority to keep them honest, they wouldn't have got away with that. Absolutely, Senator, I think the key thing here is we need that authority to make sure that whistleblower sacrifices aren't in vain. That's just as important to a whistleblower or, maybe even more important, than compensation and protection.

Senator PATRICK: You raise the interesting point that, during your journey, you were fettered by laws around legal professional privilege. I'm pretty sure the Ombudsman, or at least the Auditor-General in the case of the Commonwealth, has the ability to call for documents that are subject to privilege, noting obviously that, in the case of Auditor-General, that's an organisation of the parliament calling on documents from the government. If the whistleblower protection authority were to be enacted, and there seems to be some indication that it will in the future, would it be your view that the whistleblower authority should perhaps be able to peek beyond the normal protections of LPP?

Mr Morris : Absolutely. Let me just briefly say how bad it is. When the Don Nguyen scandal at CBA broke and they were scurrying around to basically close ranks and try and cover up the whole scandal, one of the first emails that went around—and this eventually emerged—went to all the people dealing with the cover-up telling them to direct their emails via the CBA legal department so they could claim legal professional privilege over all those communications. The abuse of legal professional privilege by organisations like CBA is so systemic that it's almost a joke to talk about holding them to account without some capacity to look through that. Indeed, that's part of an overall culture at CBA and, to a lesser extent, other banks, where, even in commercial disputes, they play games with the legal professional privilege. That's part of the culture that I exposed in the financial planning area, but it goes through the whole bank, and abuse of legal professional privilege is just part of that culture that, 'We're entitled to do whatever we like and cover it up however we like.' Absolutely, to be serious, you've got to start piercing the veil of this legal professional privilege. Of course, most of the claims for privilege are quite dodgy and dubious, but, if people don't even know that the documents exist, how do they ever challenge that claim for privilege?

Senator PATRICK: The court has the ability to examine something and determine whether privilege applies, but, obviously, to get to that point you've gone quite a long way and you've probably had to have legal counsel supporting you on that.

Mr Morris : You need to know what to ask the court to examine, and a lot of the time you won't know that. But, once again, this is the problem with large organisations. They've made the court system their servant and the big chequebook litigation that they will indulge in can pulverise any individual opponent. For people who've tried to take on the banks in court, it's almost always a disastrous tale of woe. And, indeed, it's the same with whistleblowers who seek redress through the courts. I alluded to Dr Koh's experience earlier. There'll be no documents in discovery because they've all got privilege claimed over them, and it's such a difficult and expensive process for an individual to try and take on a large institution in that circumstance that the most rational thing is not to attempt it in the first place, quite frankly.

Senator PATRICK: In your particular matter, you said that ASIC failed and, indeed, it wasn't interested in assisting in some sense because to do so would be to also disclose their own problems. I understand this doesn't necessarily help you as the whistleblower, but, in terms of getting a remedy to the conduct that was occurring, how critical in your case was going to the media?

Mr Morris : It was the only way to get an outcome. The point is often missed that I'd also made an internal disclosure to the then CEO Ralph Norris. I did that anonymously, but the company could have contacted me at a very early stage, about mid-2009, and dealt with that internally. I did that because it was apparent that ASIC had sat on the thing for about six months and, when I realised that that hadn't changed the company's behaviour, and in fact all it did was intensify the cover-up, about eight months after that, I went into ASIC and pounded the table and finally got them moving. But, of course, the bank had had nearly 18 months at this stage to sanitise files. ASIC, to this day quite cutely says they can't find any evidence of that, but, of course, the point of file sanitation is not to leave anything behind. By the time I finally got them moving, most of the evidence had been destroyed.

The other thing was that when ASIC finally got moving, they imposed an enforceable undertaking, and there was some sort of compensation scheme. I told ASIC at the time, 'It's not working and they're taking you for a ride.' They really didn't care because they were trumpeting their successes with an enforceable undertaking on the CBA and basking in the limited success that they had. I think I explained it once as if we had dealt ASIC a no-trumps slam hand and they had bid and made a contract for six spades or something, if you're a five hundred player. They were very pleased with that outcome, but I knew that the compensation scheme that CBA had pulled the wool over the eyes of ASIC with was a joke, and people had just received a bit more compensation but nothing like what they should have. So I realised that I was going to have to go public to expose the fact that ASIC hadn't done its job. I think that came out in about the middle of 2013 in the Senate where, as far as ASIC were concerned, CBA was one of the greatest successes they'd ever had. They quite resented the press exposure, but, 12 months later, when the inquiry was over, it was clear for everybody to see that the corporate regulator had failed. They had had the wool pulled over their eyes by CBA. Had I not gone public, of course, it would've ended with a very mediocre amount of compensation being paid to a few lucky victims, and that was all. That wasn't acceptable to me. So you not only had to advise the corporate regulator, but you then had to go to the media to do their job for them. Unfortunately, you're talking about last lines of defence. Ultimately, the media is the means of when a regulator not only fails to do its job in the first place but fails to correct something when it's brought to their attention. Then, in my case, I went to the media. We had a Senate inquiry, and I think we were getting pretty close to the truth. As I said before, we've certainly achieved a lot more. Unfortunately the way the government effectively let CBA off means that we still didn't get a perfect outcome, but I guess it's not a perfect world.

Senator PATRICK: My last question is: you said in your opening statement that the threshold in this bill that grants you a protection going to the media is very high. I asked Professor Brown this question but you also have contact with a number of whistleblowers. Do you have a feel for how many whistleblowers, where you have knowledge of their circumstances, would meet those criteria?

Mr Morris : I can't think of anybody offhand that would satisfy it. I think it's absurdly high, and bound to be counterproductive. It's like Monday morning quarter-backing, to sit down and say would they or wouldn't they? A whistleblower looking at this is just going to look at it and think, 'This is not clear and it's not certain, and I've got to satisfy this criteria, and will I or won't I?' The moment you introduce an element of doubt, as I said, 99 people in 100 will pull back. Even if it looks like it's probably okay, people will pull back, because they'll say, 'I'm risking too much.' So I think the criteria are absurdly high, but the moment you start putting any criteria like that in place, you're going to lose just about all of them.

Senator PATRICK: So you have to remove any uncertainty, any doubt, and make sure the thresholds are low?

Mr Morris : Exactly, and why not do that? What are we afraid of at the end of the day? We are talking about exposing the truth. I don’t understand what that's designed to achieve. It makes no sense to me.

Senator BUSHBY: Just a couple of questions to wrap up, and thank you for assisting us with this as well. Can I just clarify, your main objection to this bill proceeding is that it doesn't contain all the things that you would prefer to see a whistleblower regime contain. And if this bill is enacted you think that it might be the one bite of the cherry and the opportunity to get those things will then pass for some time—is that correct?

Mr Morris : That is exactly right, Senator.

Senator BUSHBY: But you do acknowledge that as presented, the bill does contain a number of significant improvements over the position as it currently stands?

Mr Morris : I think, yes.

Senator BUSHBY: Bearing in mind that first question.

Mr Morris : Exactly. It's clearly building on what's there, which is terrible, and it's making some improvements. I guess my point in the macro is that it's fiddling while Rome burns. Is it worth making these minor improvements at the risk of effectively taking this item off the legislative agenda for the next ten years on the basis that we've now had whistleblower reform and we're not going to do it again. I think the answer to that is no, it's not worth it.

Senator BUSHBY: You've made that clear, that you prefer it not to go ahead because you think that it's going to undermine the potential for further changes in the near future, effectively.

Mr Morris : Exactly.

Senator BUSHBY: You'd also acknowledge that the government has yet to respond to the parliamentary joint committee's report?

Mr Morris : Yes. In terms of beefing up this legislation, that ought to be part of the process before this bill goes any further. I really think it's necessary for that committee report to be dealt with, acknowledged or, in one way or another, why we're doing it or why we're not doing it. To my way of thinking that should really have preceded the drafting of this bill.

Senator BUSHBY: I think the process leading to the process of this bill started a long time before the PJC finished.

Mr Morris : Sorry, I understand that, Senator. What I mean is instead of the drafting the presentation of this bill to parliament is. Once that parliamentary joint committee had undertaken that process and made those recommendations, my view would be that all of that should have been considered and either specifically excluded, for whatever reason, or incorporated into this bill before it was put forward.

Senator BUSHBY: My understanding is that the government is considering the report and will respond in due course. As part of that consideration, they will be looking at things like the whistleblower authority and also a bounty scheme. Those are inherently both being considered as part of the consideration of the parliamentary joint committee. Apart from those two particular things, what in particular would you like to see change to this bill if it was to be passed now?

Mr Morris : Those are my two main tenets. Those are the two key things. Aside from that, Professor Brown's submission outlines a whole raft of other things, but to me those are the two most important things.

Senator BUSHBY: Despite you clearly annunciating your preferred way forward, if this bill was to be passed and then subsequently further amendments were made, which actually introduced those two, would that satisfy you?

Mr Morris : Absolutely. My only concern is the risk—It's like a bird in the hand, because anything can happen to mean that the second stage, for whatever reason, just doesn't happen.

Senator BUSHBY: That's your major concern. Thank you very much for that.

CHAIR: Thank you very much for appearing, Mr Morris.