Anti-Corruption Laws – can they deliver?

Isla MacGregor, Jennie Herrera

The recent comments by the Tasmanian Attorney General on ABC radio (1st November) that “there isn’t an entrenched culture of corruption in this state” are to be expected from this Government. Tasmania’s entrenched culture of corruption is hand in glove with its entrenched culture of denial. As most Tasmanians would consider his comments to be a nonsense, there are, nevertheless, some important questions Tasmanians can be asking of our elected members at State and Federal levels on transparency issues …

Amidst increasing calls for establishment of a Tasmanian Independent Commission Against Corruption it is time to broaden the discussion to look more generally at the effectiveness of Public Interest Disclosure Legislation and Anti-Corruption Commission Acts in Australia. Some people in government have referred to the Tasmanian Public Interest Disclosure (PID) Act as our anti corruption legislation. The majority of Tasmanian public servants and the public don’t even know about the PID Act. So what do Tasmanians need to know about our PID Act?

Dr A. J. Brown, Senior Research Fellow, Griffith Law School, Visiting Fellow, Australian National University College of Law, released his summary “Public Interest Disclosure Legislation in Australia: Towards the Next Generation” as part of the Australian Research Council “Linkage” Project “Whistling While They Work” in November 2006. The paper was prepared as part of the national research project “Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in the Australian Public Sector”. The forward to the paper was written by John McMillan, Commonwealth Ombudsman, Bruce Barbour, NSW Ombudsman and David Bevan, Queensland Ombudsman – “The paper analyses the current public interest disclosure legislation by asking a series of ten fundamental questions that any such legislation needs to address”. Brown’s “call for a national and coherent approach deserves special attention” and invites government agencies and the public to help inform their “collective thinking about what might constitute ‘best practice’ in public interest disclosure legislation, and contribute to recommendations for reform”.

Brown’s paper prompted Senator Andrew Murray to produce the Public Interest Disclosure Bill 2007 which was tabled in the Senate in June this year. Peter Bennett from Whistleblowers Australia has said “ WBA supports the Bill as “best practice’ legislation so far, but further improvements are desirable”.

Although the Office of the Tasmanian Ombudsman had no input to the “Linkage” Project there has been no public response from the Tasmanian Ombudsman or the Attorney General to Brown’s criticisms of the Tasmanian PID Act or his calls for uniform legislation. Nor has there been any public debate of the implications of the tabling in federal parliament of Senator Andrew Murray’s ‘second generation’ PID Bill.

In the Tasmanian Ombudsman’s Annual Report from 2005-2006 he states:
“Only one disclosure alleging improper conduct was received under the Act in the reporting year. This matter was not pursued or adequately substantiated by the complainant.
There have been no referrals of disclosures to the Ombudsman from public bodies in accordance with s 35, nor from the State Service Commissioner in accordance with s 28, the President of the Legislative Council or the Speaker of the House of Assembly in accordance with s 78”.

So where does the Tasmanian legislation sit within Brown’s summary, what does the Tasmanian public know about the effectiveness and accessibility of our legislation, have the warnings about the futility of poor legislation come to fruition – and now with calls for Anti Corruption Commissions to be set up in all states and uniform PID laws across Australia – which way forward?

Brown’s comments about the problems of whistleblower protection laws are useful and his criticisms of the Tasmanian legislation reflect those of whistleblowers in Tasmania when advising Government during the drafting process and subsequently when criticising the Act

Brown’s Summary concludes that the Tasmanian Act:

1. Has “no requirements for agencies to develop procedures for the protection of whistleblowers, or other internal witness management systems. The development of clearer statutory guidance for such systems is a major priority”.
2 Has “insufficient legislative support … to ensure effective internal witness support, reprisal investigations, monitoring and policy development”.
3 Needs a “revised approach to the relationship between whistleblower protection
laws and existing integrity systems. New approaches are needed for ensuring
that whistleblowers have multiple disclosure avenues” and that the Tasmanian Act has a “confusing dual classification (both ‘protected’ and ‘public interest’ disclosures) which should be abolished”.
4 Provides no legal protection to whistleblowers who make disclosures to members of parliament or the media and that this “glaring deficiency” must be rectified.
5 Fails to “provide flexible injunction or compensation remedies for aggrieved whistleblowers based in employment and discrimination law” and that “Prosecutions for reprisal offences” need a “more strategic” and simplified approach.
6 Has an “extremely high threshold allowing the reporting and protection of only the most serious types of disclosures (e.g. criminal wrongdoing) and fails to take a “comprehensive approach to identifying the public sector wrongdoing that can be contained in disclosures” including “public contractors”.

There are a number of different conclusions that can be drawn from the evidence of the use or failure to use the Tasmanian PID Act:

1. That the Act has been a wasted effort because there is no corruption in Tasmania (the Government’s view).
2. That the fear of “never finding another job in Tasmania again” and the spectre of reprisals, based on an understanding of ‘the Tasmanian way’ or publicity of other whistleblowers’ experience is a major deterrent. (A would be whistleblower’s view).
3. In general, public sector employees don’t know about the Act so haven’t used it (a public servant’s view).
4. That public sector employees have little faith in using the Office of the Ombudsman, the Office of the Anti-Discrimination Commissioner or Tasmania Police Internal Investigations Unit to investigate allegations of corruption, discrimination, victimisation or reprisals (a public view – having observed the Government’s consistent interference with independent watch dogs).
5. That because of the procedures for investigation of allegations there is no point (a wise whistleblower’s view).
6. That “leaking and leaving” is a more safe and effective method of disclosing information in the public interest (the informants view – even though this will make no inroads into the “systemic bully boy culture” at the upper levels of the Tasmanian Public Service, the Executive or Government and puts too much focus on the parliamentary battlefield as opposed to the issues disclosed).
7. That adoption of a Bill of Rights will further enhance the capacity to protect whistleblowers rights, inhibit corruption, and provide additional checks and balances (a lawyer’s view).
8. The whistleblower and activists’ view is that a solely legislative approach to resolving whistleblower issues is inadequate. That support networks are vital in the sharing of information and strategies about how to challenge secrecy in Government and to ensure that the public have free access to information that is their ‘right to know’. Positive changes will only come from confident, informed and outspoken citizens public demanding of government the highest standards of honesty, integrity, and transparency. Simultaneously there needs to be a major shift in the way people deal with bullying within all organisational structures in society.

The first national Australian Public Sector Anti-Corruption Conference held in Sydney on 24 Oct. has been well timed before the election. With Dr Brown’s prediction that 100,000 public servants will blow the whistle this coming year the Australian public should be well and truly alerted that our ‘Democracy’ is urgent need of some “sunlight”. The article in the 27/28 Weekend Australian “Rudd to abolish secrecy ploys” outlines Rudd’s raft of changes in the oppositions’ “open government” plan. His plan promises to: abolish conclusive certificates, appoint a new Information Commissioner, develop better “shield” laws for journalists and ‘best practice’ whistleblower legislation. Given the limitations on Rudds’s proposals for protection of whistleblowers his rhetoric is just window dressing. With no timeline for this “open government” plan, pre- election promises like this mean little. The public would do well to be reminded that former Minister for Justice, Duncan Kerr, rejected all the recommendation of the Senate select committee on public interest whistleblowing, and unresolved whistleblower cases (Kerr’s response tabled in Parliament on 26th October 1995). It took ten years from promise to proclamation to get bad PID legislation in Tasmania – one can only wonder how long Rudd’s “plan” will take to effect (or not effect as the case may be).

Media organisations’ campaign “Australia’s Right to Know” has been effective in raising public awareness on the Government’s ‘iron curtain’ on information but there is a need for greater participation from the public to keep the pressure on Governments.

The recent comments by the Tasmanian Attorney General on ABC radio (1st November) that “there isn’t an entrenched culture of corruption in this state” are to be expected from this Government. Tasmania’s entrenched culture of corruption is hand in glove with its entrenched culture of denial. As most Tasmanians would consider his comments to be a nonsense, there are, nevertheless, some important questions Tasmanians can be asking of our elected members at State and Federal levels on transparency issues:

To our state representatives:
– when will the Government release the report from their representatives who attended the first national Australian Public Sector Anti-Corruption Conference in Sydney on 24 Oct?
– in light of Brown’s criticisms, what is the timeline for a review of the Tasmanian PID Act with a view to “second generation” and uniform PID legislation?
– will any new PID Act include protection for people who disclose “information fraud” or are discriminated against on the grounds of “policy dissent”?
– what is their view on NSW Premier Morris Iemma’s comments that Tasmanians are just “kidding ourselves” and “crazy” if they don’t think they need an ICAC?

To our federal representatives:
– will they support Senator Murray’s Public Interest Disclosure Bill 2007?
– what is the timeline for Rudd’s “plan” and what amount of $$’s is he going to spend on it?

In the meantime, ask your federal candidate or local member how they would respond to a member of their family becoming an informant or whistleblower in the public interest?

Note: For further information on the failure of PID Act’s and Independent Commission’s Against Corruption see “The Whistle”#48 October 2006 at:
Whistleblowers.org.au/. “John Kite finds justice at last – no thanks to ICAC” – Kite was an employee of the NSW National Parks and Wildlife Service who in 1997 had raised serious concerns – which were ignored – about irregularities in development approvals in the Thredbo area. One year later 18 people died in the Thredbo landslide. Dr Jean Lennane, national president of Whistleblowers Australia said in relation to Kite’s case “The ICAC inquiry and resultant court case is estimated to have cost taxpayers over $6 million”. ICAC’s pursuit of Kite is a shocking saga, one which Lennane sums up by accusing ICAC of being a “rabid watchdog”.