Who wants to be a whistleblower? Public servants keep quiet fearing reprisals and the ‘un-Australian’ tag

By Stephen Easton

Wednesday October 23, 2019

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The anti-corruption commissioners in Darwin and Adelaide are both worried that public servants are too reluctant to tell them about misconduct and maladministration, while in Canberra, a Senate inquiry into the taxation watchdog’s performance highlights what they are afraid of.

The Northern Territory’s Independent Commissioner Against Corruption, Ken Fleming, believes some agencies are not reporting all the matters they should, partly due to a culture that discourages people from speaking up about wrongdoing.

“If such a culture exists, it must change,” writes barrister Bruce McClintock, who notes Fleming’s concern in his first report as NT ICAC inspector (a part-time role he also performs in New South Wales).

McClintock has heard NT public servants are afraid to send disclosures to the ICAC, where required by law, because they fear reprisals.

“If that is the case, it is highly regrettable, and action should be considered by way of legislative amendment to strengthen whistleblower protection,” comments the watchdog’s watcher.

“If, as the [ICAC] General Manager has informed me, 16 out of 16 whistleblowers have had reprisals taken against them, it is extremely disturbing.”

McClintock suggests it might help to put the ICAC in charge of whistleblower protection instead of the agencies that employ the whistleblowers.

“The NT must challenge the adage that it’s ‘un-Australian’ to dob-in a corrupt official, colleague or competitor,” Fleming writes in his annual report.

“It is unfortunate in our society that the actions of the few corrupt and deceitful people in public administration mean that all public servants are burdened with increasing layers of regulation and oversight.”

The South Australian ICAC, Bruce Lander, recently made similar observations in a mass email to the state’s entire public sector: too many people do not follow ICAC reporting obligations. Like Fleming, Lander pointed the finger at “poor reporting cultures” in some agencies.

“Public officers should never be discouraged from, or punished for, reporting wrongdoing to their agencies or the Office for Public Integrity,” he wrote.

Lander is hopeful SA’s new Public Interest Disclosure Act will “go some way to supporting and protecting” whistleblowers. “I also hope it will convince agencies more broadly to listen to their staff about matters that they should rightly be interested in and appropriately acting upon.”

In Canberra, a Senate committee probing the performance of the Inspector-General of Taxation has turned a spotlight on the experiences of tax officials who have faced a hostile response from the Australian Taxation Office after reporting perceived wrongdoing.

Ron Shamir contacted the IGT in 2014 and was then legally compelled to provide further information, meaning he was also theoretically protected from detrimental action as a result. “The IGT promised me protection for making a disclosure and no protection was afforded to me as the process unfolded,” he told the committee.

Shamir says he was terminated a day after the IGT sent a message about its investigation to the ATO, which disputes that timeline and says he was let go for other reasons. The inspector-general essentially accepted this as did the Fair Work Commission in rejecting an unfair dismissal claim. The inquiry heard he hadn’t worked since then and his family had lived in poverty for over four years.

Senator Rex Patrick is highly critical of the IGT for failing to challenge this dismissal as a crime under its legislation. Shamir says the inspector-general was too cooperative with the ATO.

The recently appointed inspector-general of taxation, Karen Payne, pointed out tax officials have no legal protection when they first approach the IGT — now additionally styled as the Taxation Ombudsman — to report something suspicious. Whistleblower protection in the IGT Act only kicks in when the office begins a formal investigation. Payne agreed this was a “chicken-and-egg” problem.

Ken Fleming believes the NT and other Australian jurisdictions “must do more” to protect whistleblowers. He will shortly issue new guidelines on: integrity education and training; policies and procedures; responsibilities and resources; organisational culture; and management of situations where reprisals are possible.

Policies and procedures are good but workplace culture is “far more critical” and, as always, leadership is the key factor. Fleming says managers and supervisors have to take the lead on cultural change and managing disclosures.

“I would like to thank the brave people who have come to me personally, and to my office, to report improper conduct,” he adds. “I seek their patience and understanding as we establish and embed the people and processes to assess and investigate their reports.”

At least two current investigations are likely to involve public hearings, according to McClintock, who reports these are historical matters from several years before the NT ICAC’s establishment.

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