Thursday, December 30, 2010

Ideal whistleblowing legislation in Australia

The thirteen best practice principles for whistleblowing legislation in Australia are set out below,

They come from Chapter 11, p 261 of the book "Whistleblowing in the Australian Public Sector” The chapter was prepared by AJ Brown, Paul Latimer, both academics, John McMillan, Commonwealth Ombudsman, & and Chris Wheeler, Dy, NSW Ombudsman The book is available FREE on line from ANU E-Press:
Not all observers agree with these thirteen principles, but most active and informed supporters of strengthening whistleblowing practices would. Some of the negative comments are provided after the 13 principles
The following list provides a good but foreshortened summary:
1. The objectives of whistleblowing legislation should be (a) to protect the whistleblower, (b) encourage whistleblowing (c) ensure justice in that the wrongdoing is stopped, and if appropriate, the perpetrator punished.

2. The legislation should be specific as to the wrongdoing. It should be against the law, against the public interest, a risk to public health, safety or the environment .It would exclude personal grievances

3. The whistleblower’s motives are irrelevant,,, The whistleblower must however, sincerely believe that a wrongdoing has occurred. . The disclosure should also show, or tend to show, that a wrong has occurred

4. All complaints are to be formally made to a relevant party within the organisation, or an external agency with jurisdiction to receive the complaint

5. All complaints to be formally recorded

6. The legislation should place an obligation on the agency to assess and take prompt action in respect of complaint. The whistleblower is to be kept informed of progress of the complaint

7. There needs to be a responsible external oversight agency, able to step in if the operating agency fails to take action.

8. Procedures, information, and whistleblower's identity should be kept confidential. This is difficult to achieve, but will help protect the whistleblower from any reprisals

9. The whistleblower should be protected from any detriment in several ways – Not liable prosecution for breaking a secrecy provision , civil liability , any disciplinary action, reduced or terminated employment, entitled to legal redress, even if he/she is a party to the original wrongdoing.
10. Exposure to the media must be possible. The Brown et al, recommendation is that the whistleblower make the complaint internally first, but that he/she can go to the media if no action is taken.

11. The home agency must be responsible for protecting the whistleblower, and should have the procedures in place to assess the risk and ensure protection,

12. A whistleblower who is victimised must have the detrimental action stopped;and be compensated, - and given an apology. Disciplinary or criminal action should be taken against any who victimise a complainant.

13. There needs be an information and education program mounted by the oversight agency . That agency must be given the resources to manage an effective program and to continually assess it

Barry O'Keefe . former Head of the Independent Commission against Corruption in NSW, at the 2010 annual conference of Whistleblowers Australia disagreed with three of the recommendations
He objected to the statement in point 3 that the whistleblower’s motives are irrelevant. O’Keefe argued that the whistleblower cannot act from dislike or malice. The authors of these guidelines, along with this writer, argue that O’Keefe is wrong. It is quite easy to envisage a situation where an employee, working under a dishonest supervisor, had come to dislike that supervisor, but had acted to inform authorities only when a dishonest action of a sufficient magnitude could be proven
Another objection was the second part of point 6, on the grounds that such a requirement put far too great an importance on the whistleblower. Most observers agree, however, that the agency can sweep the disclosure under the carpet. If the agency can ignore the complaint, and not inform the whistleblower, little will have been gained
O’Keefe disagreed with point 9 also, in that it suggested protecting a whistleblower even if he/she was party to the original wrong. This objection however, is best answered by the question “Which is the more important - stopping the wrongdoing or punishing a person who has decided against continuing with the wrongdoing?” Common sense points out that if a person who has been involved in an illegal act, they are unlikely to come forward if they are opening themselves to punishment.
The next steps in developing this blog are the assessment of how well the NSW and other Australian whistleblowing acts meet the above guidelines


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