Whistleblower law gone to the dogs, change afoot to narrow scope

By Stephen Easton

Friday April 8, 2016

Philip Moss is likely to recommend the scope of the Public Interest Disclosure Act be narrowed to exclude less serious matters, when he completes a review of the two-year-old whistleblowing legislation in July.

“It has become clear that the Commonwealth PID scheme captures too many minor workplace grievances that would be more effectively resolved through other processes,” he said, speaking at an Institute for Public Administration Australia seminar in Canberra this week.

The view was shared by the two other well-informed figures speaking at the IPAA ACT forum. Senior assistant ombudsman George Masri had reflected on the law’s first two years from the vantage point of the Commonwealth Ombudsman’s office, which holds joint responsibility for the scheme with the Inspector-General of Intelligence and Security, Margaret Stone.

Moss is conducting the two-year review out of the Department of the Prime Minister and Cabinet and working jointly with the two responsible agencies, but said “at the end of the day” his findings would be independent.

“There’s a danger of a substantial number of personal grievances and employment matters that aren’t systemic or at the serious end of the spectrum coming under the PID scheme,” Masri explained, as he discussed what he saw as some of the system’s strengths and weaknesses.

” … the secrecy provisions can hamstring the agency’s ability to deal effectively with the disclosure.”

Masri said one of the shortcomings of the Ombudsman’s oversight role was that it did not include follow-up reporting on PID investigations. “Agencies aren’t required to come back to the Ombudsman in relation to what the outcome of the PID investigation is,” he explained.

He thinks the significant overlap with other investigative mechanisms is “an area of confusion for a lot of agencies” and feels the substantial obligations the act has placed on tens of thousands of supervisors are not well understood by those bound by them. The obligations on supervisors should be another target for “significant work” in the statutory review, said Masri, and there are indications that Moss will reduce them also.

Some agencies “effectively over-engineer the secrecy and confidentiality provisions, so much that they virtually make it impossible to investigate the issue” which means the senior ombudsman sees “scope to look at further legislative refinement in that area” as well.

A ‘dog’ act that advanced key rights

Public policy and law professor AJ Brown, who leads a public integrity and anti-corruption program at Griffith University and worked investigations at the Commonwealth Ombudsman’s office in the 1990s, agreed that the scope of the act was too wide and a “logical” place to tweak the legislation.

“The Commonwealth act is a dog … that’s just a fact.”

“Don’t make every breach of the APS code of conduct a public interest disclosure; other jurisdictions don’t do that,” he said.

All Australian jurisdictions have a scheme to protect public sector whistleblowers and all could be improved. According to Brown, the ACT has the best public interest disclosure legislation because it’s “simple and straightforward and clear, and fairly flexible, not massively prescriptive”.

“And by comparison to that, the Commonwealth act is a dog,” the professor added. “That’s just a fact. That in and of itself gives an indication of why the review is very important; figuring out how to just increase it’s clarity and simplicity of operation.”

Despite its wide scope and complexity, and lacking the deft touch of the ACT Government’s drafts-people, he thinks the Commonwealth regime has “some great aspects” and is confident Moss can improve it.

AJ Brown
AJ Brown

The federal PID Act was an important and “quite historical” step forward, Brown believes, because it provides protection not only to those reporting internally or to a separate watchdog agency, but also for going public in certain circumstances. New South Wales, Queensland and Western Australia to some degree capture that eventuality.

“The others are … not dealing with the fundamental question of when do we expect people to be able to go public and still be able to claim the protections of the act? … Even if it’s doing it in a clunky, doggy sort of way, it’s a fundamental leap forward that it was comprehensive like that.”

Public servants who seek compensation in the Federal Court for the consequences of becoming whistleblowers are never liable for the costs of the federal agency defending the claim. Brown says that was another big step forward: “In every other jurisdiction, if you lose, you can face costs … that in and of itself is a killer for people likely to be seeking that particular compensation avenue.”

Brown is currently putting the call out for agencies of all levels of governments across Australia and New Zealand to take part a survey for the second iteration of the “Whistling While They Work” research project. The three-year study aims to expand significantly on the first — which was completed in 2009 and is already the largest of its kind in the world — and go into organisations in all sectors this time.

By comparing a large number of organisations against each other, it should be possible to to see which are reaping the benefits of an effective whistleblowing system and which are burdened by a culture of silence, and why.

Frustration, reprisal and uncertainty

Having led the Australian Commission for Law Enforcement Integrity from 2007 to 2014, Moss said he was particularly interested in assessing the extent to which the PID Act was making public servants more comfortable with reporting serious matters.

Describing the Commonwealth’s anti-corruption model as a “patchwork approach,” Moss said the PID Act must be effective in encouraging people to report fraud, serious misconduct and corruption conduct.

“It must allow for agency effort to be concentrated on investigating such wrongdoing, matching the effort to the risk it posed … When suspected serious wrongdoing is disclosed, it is essential to provide strong protections for the whistleblower. But where the disclosures run into minor issues, the secrecy provisions can hamstring the agency’s ability to deal effectively with the disclosure.”

The consequence of the large number of matters that fall under the definition of disclosable conduct is obviously a large, and perhaps unnecessary, administrative burden. Supervisor obligations add to the problem, according to Moss. Matters may escalate unnecessarily, he says, as public servants are mindful of the risk of non-compliance with the obligations to pass disclosures from their subordinates to an authorised officer.

“The result may be needless expenditure on agency effort, and potentially aggravating an employment grievance best dealt with quickly by mediation, counselling or ordinary management decision-making, rather than through the formal PID investigative process.”

Since the review began Moss has tried to understand the experience and personal cost on those who go through the PID process.

“For whistleblowers, a PID may be the last resort, and their disclosure may be made with a sense of frustration, fear of reprisal, and uncertainty about how their information will be received,” Moss explained. The PID’s protections can provide confidence and certainty their concerns will be seriously considered, but in some cases, it still isn’t enough.

The source of the danger for whistleblowers and the reason most public servants are reticent to join their ranks is the conflict that breaks out when accusations are made, and people and organisations get defensive. But being accused and maligned unfairly or overzealously can be bad as well, and procedural fairness must apply.

“Finding the proper balance is the challenge,” said Moss.

Moss is due to deliver the two-year review to the government on July 15 — potentially to a new government if a federal double dissolution election is held on July 2 — and it must be tabled within 15 sitting days.

He has written to over 200 federal entities along with other individuals and organisations outside, and received 34 submissions, which will be posted on the PM&C website, apart from seven which are partially or fully in confidence.

Moss has also held discussions with Tasmanian MP Andrew Wilkie as well as the Victorian Ombudsman Deborah Glass, her (acting) New South Wales counterpart John McMillan, and the commissioner of Victoria’s Independent Broad-based Anti-corruption Commission, Stephen O’Brien. He still plans to meet with Australian Public Service commissioner John Lloyd and merit protection commissioner Annwyn Godwin.

A survey which is part of the review has just opened, specifically to allow public servants who have “considered, attempted, or actually reported concerns about potential wrongdoing” to contribute without making a formal submission.

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