Letting the Sun Shine InNew Developments and Challenges in Government Transparency and Accountability

A J BrownProfessor of Public Law, Griffith Law School, Gold CoastDirector, Transparency International Australia

Parliamentary Library, Canberra, 27 October 2010

Chaos or Coherence? Strengths, Challenges & Opportunities for Australia’s National Integrity

Systems

National Integrity System AssessmentAustralian Research Council Linkage Project - Report

(2005)

TRANSPARENCYINTERNATIONAL

AUSTRALIA •

Australian Research Council

Linkage Project

B. Head, A. J. Brown & C. Connors (2008) (eds),Promoting Integrity: Evaluating and Improving Public

Institutions, Ashgate; inc. 'Towards a Federal Integrity Commission: The Challenge of Institutional Capacity-Building

in Australia‘

Transparency International’s National Integrity System ‘Greek Temple’Jeremy Pope (ed), TI Sourcebook 2000, p.35

Review of Victoria’s Integrity and Anti-Corruption System (May 2010)

Review of Victoria’s Integrity and Anti-Corruption System (May 2010)

Integrity from the top: core institutions

1. Commonwealth integrity & anti-corruption commission

2. Governance review councils

3. Standing parliamentary & public oversight mechanisms

4. Jurisdiction over corporatised etc services

5. Access to administrative justice

6. Enforcement of parliamentary and ministerial standards

7. Independent parliamentary select committees

Walking the talk: distributed integrity institutions

8. Statutory frameworks for organisational codes of conduct

9. Relations between organisations & core integrity agencies

10. Effective disclosure of interests & influences

11. Whistleblower protection and management

12. Minimum integrity education and training standards

13. Professional development for integrity practitioners

14. Freedom of Information

15. Regional integrity resource-sharing and capacity-building

Investing in integrity: evaluation and research

16. Public review of integrity resourcing & performance measurement

17. Parliamentary oversight review methodologies

18. Evidence-based measures of org. culture, awareness & public trust

19. Core integrity institutions in the business sector

20. Civil society integrity systems

At Death's Door

27/06/2005Australian Story tells the untold personal story of the nurse who lifted the lid on a medical scandal making front page news, not just in Australia, but around the world.Toni Hoffman is nurse in charge of the Intensive Care Unit at the Bundaberg Base Hospital in Queensland. ….

http://www.griffith.edu.au/whistleblowing

http://epress.anu.edu.au/whistleblowing_citation.html

Chapter 11.Best Practice Whistleblowing Legislation for the Public Sector: The Key Principles

A J Brown, Griffith UniversityPaul Latimer, Monash UniversityJohn McMillan, Commonwealth OmbudsmanChris Wheeler, Deputy NSW Ombudsman

1. Public whistleblowing – when is it justified / reasonable?

2. Better organisational systems for encouraging & managing whistleblowing

- Comprehensive definitions and applications- Minimum standards for agency obligations and procedures- Central agency with clearinghouse, monitoring, oversight and

early intervention role.

3. Employers’ and managers duties of care to protect and support, and remedial mechanisms

Managerial responsibilities and systems

Effective remedies for breaches and failures

- stress, psychological injury, injury to career

Relationship between whistleblower support and othermanagement obligations (bullying, OH&S, Fair Work).

Key legislative issues

ALP 2007 Government Information Policy, ‘Restoring Trust and Integrity’‘Federal Labor will provide best-practice legislation to encourage and protect public interest disclosure within government to an integrity agency… [and,] where a person has exhausted all legitimate mechanisms and avenues of complaint, … to third parties such as journalists.’

House of Representatives Standing Committee on Legal & Constitutional Affairs (Chair: Mark Dreyfus). Whistleblower protection: A comprehensive scheme for the Commonwealth public sector. Commonwealth of Australia – February 2009.

Commonwealth Government Response – Senator the Hon Joe Ludwig, Special Minister of State, 17 March 2010.

Towards a federal Public Interest Disclosure Act…

Reform of Australian whistleblowing legislation

Jurisdiction Original Reformed Title

South Australia* 1993 Pending Whistleblowers Protection Act

Queensland* 1994 2010 Public Interest Disclosure Act

ACT 1994 Pending Public Interest Disclosure Act

New South Wales 1994 2010 Public Interest Disclosure Act

Commonwealth 1999 Underway Public Service Act, s.16

Victoria 2001 Underway Whistleblowers Protection Act

Tasmania 2002 2009 Public Interest Disclosures Act

Western Australia 2003 Pending Public Interest Disclosure Act

Private sector* 2004 Underway? Corporations Act, Part 9.4AAA

NT 2008 -- Public Interest Disclosure Act

* Private sector coverage

Public whistleblowing:Commonwealth Government - March 2010

The PID Bill will protect public disclosures (including to the media):

(a) where: (i) matter disclosed has previously been disclosed to the responsible agency and the integrity agency, or the integrity agency directly;

(ii) a serious matter;

(iii) disclosure not acted upon in a reasonable time, or the discloser has a reasonable belief that the response was not adequate or appropriate;

(iv) no more information than is reasonably necessary to make the disclosure is publicly disclosed; and

(v) the public interest in disclosure outweighs countervailing public interest factors (e.g. protection of international relations); OR

(b) where: (i) discloser has a reasonable belief that a matter threatens substantial and imminent danger or harm to life or public health and safety; and

(ii) there are exceptional circumstances explaining why there was no prior disclosure internally (i.e. to the responsible agency) or externally(e.g. to the Ombudsman).

New Queensland Act – September 2010

20 When disclosure may be made to a journalist

(1) This section applies if—

(a) a person has made a public interest disclosure…; and

(b) the entity to which the disclosure was made or, if the disclosure was referred…, the entity to which the disclosure was referred—

(i) decided not to investigate or deal with the disclosure; or

(ii) investigated the disclosure but did not recommend the taking of any action in relation to the disclosure; or

(iii) did not notify the person, within 6 months after the date the disclosure was made, whether or not the disclosure was to be investigated or dealt with.

(2) The person may make a disclosure of substantially the same information … to a journalist.

[And …

At all times, either has to be right or ‘honestly believe on reasonable grounds’ that the information shows or tends to show wrongdoing – s.12(3) ]

1. Public whistleblowing – when is it justified / reasonable?

2. Better organisational systems for encouraging & managing whistleblowing

- Comprehensive definitions and applications- Minimum standards for agency obligations and procedures- Central agency with clearinghouse, monitoring, oversight and

early intervention role.

3. Employers’ and managers duties of care to protect and support, and remedial mechanisms

Managerial responsibilities and systems

Effective remedies for breaches and failures

- stress, psychological injury, injury to career

Relationship between whistleblower support and othermanagement obligations (bullying, OH&S, Fair Work).

Key legislative issues

Integrity commissioners –parliamentary and other

ALP-Greens & Wilkie Agreements, 1 & 2 September 2010, cl. 4.3

ALP–Windsor-Oakeshott Agreement, 7 September 2010, cl. 4, Annex A(Agreement for a Better Parliament: Parliamentary Reform, cll. 16, 18, 19. 20).

4.3 Further reforms include:

a) Establishing within 12 months a Parliamentary Budget Office within the Parliamentary Library with the structure, resourcing and protocols being the subject of decision by a special committee of the Parliament which is truly representative of the Parliament;

b) Establishing within 12 months a Parliamentary Integrity Commissioner, supervised by the Privileges Committees from both houses to:

i. provide advice, administration and reporting on parliamentary entitlements to report to the Parliament;

ii. to investigate and make recommendations to the Privileges Committees on individual investigations, to provide advice to parliamentarians on ethical issues; and

iii. to uphold the Parliamentary Code of Conduct and to control and maintain the Government’s lobbyists register.

Australian Commission for Law Enforcement Integrity (ACLEI)

-- anti-corruption commission announced 2004

-- Law Enforcement Integrity Commissioner created 2006

-- debate from outset over scope, jurisdiction

-- first three-year review by Joint Committee (Chair: Melissa Parke)

-- Customs & Border Protection added from 1 Jan 2010

-- Remainder of jurisdiction?

National Integrity Commissioner Bill 2010 (Senator Brown)

-- would include ACLEI

-- would include ‘Independent Parliamentary Advisor’(NB: lesser role than ‘Parliamentary Integrity Commissioner’)

-- would create additional, chief National Integrity Commissionerto investigate and deal with corruption issues involving

any Commonwealth public official or agency.

1. Parliamentary Integrity Commissioner

• Still new idea for Australia (only Queensland since 1999)

• New mix of advisory and investigative functions (as also proposed in Victoria)

• Still contentious? Relationship with other integrity bodies?

Key issues

Review of Victoria’s Integrity and Anti-Corruption System (May 2010)

1. Parliamentary Integrity Commissioner

• Still new idea for Australia (only Queensland since 1999)

• New mix of advisory and investigative functions(as also proposed in Victoria)

• Still contentious? Relationship with other integrity bodies?

2. National Integrity Commission

• Is there need? Yes.

• ACLEI – do we expand, or roll-in, or something else?

• Research, evaluation, education, prevention, capacity-building functions (relative e.g. to Australian Public Service Commission, Ombudsman, ANAO) – legislative mandate

• Operational coordination between agencies

• Resourcing… dependent on jurisdiction (people or $$$?)

Key issues

Relationships between NSW Public Sector Agencies and Integrity Agencies and Organisations (Smith 2005)

Notes:++ indicates ‘very important’ to the agency.+ indicates ‘fairly important’ to the agency.The ‘Other’ columns refers to ‘very’ or ‘fairly’ important integrity agencies and organisations not listed in the interview schedule/questionnaire but raised by the respondent.

Agency 3 + ++ + ++ ++ + + ++ ++ ++ 10Agency 18 ++ + ++ ++ ++ ++ + ++ + + 10Agency 7 ++ ++ ++ ++ ++ + ++ + ++ 9Agency 9 + + ++ + + + + + + 9Agency 13 ++ ++ + ++ ++ + ++ ++ ++ 9Agency 4 ++ ++ ++ + + ++ ++ + ++ 8Agency 8 ++ ++ ++ ++ + ++ + ++ 8Agency 16 + ++ ++ ++ ++ + + ++ 8Agency 17 ++ ++ ++ ++ + ++ ++ + 8Agency 20 ++ ++ ++ ++ ++ ++ + + 8Agency 19 ++ ++ + + + ++ + 7Agency 10 ++ + ++ ++ ++ ++ 6Agency 11 ++ ++ + ++ ++ + 6Agency 5 ++ + ++ ++ + 5Agency 6 ++ + ++ ++ + 5Agency 12 + + + + ++ 5Agency 14 + ++ + + ++ 5Agency 1 ++ ++ + + 4Agency 2 ++ ++ + + 4Agency 15 0

Coherence and coordination – the range of views…

NSW Agency 13:

‘[Y]ou have this matrix of watchdogs in New South Wales, and you won’t find them stepping over each other’s bodies to get to an issue. There’s a very professional, well-honed process and interrelationship. For instance, if anyone makes a complaint about a judicial officer, the Ombudsman or the ICAC would defer to the Judicial Commission to undertake that investigation, because it’s best placed’.

NSW Agency 6:

‘[It’s n]on-existent. There’s a level of comparison between Ombudsman and ICAC. Both refer to each other in dealing with matters such as conflicts of interest. Apart from that, it’s poor’.

Auditor-General

Ombuds-man

Police Complaint Authority

Police Integrity Comn

Anti-Corruption Comn

Crime Comn

NSW 1 2 3 4 (ICAC) 5

QLD 1 2 3(Crime & Misconduct Commission)

West Aust

1 2 3(Corruption & Crime Commission)

Sth Aust

1 2 3

Cth 1 2 3

Vic 1 2

Tas 1 2

NB These tables do not include Public Service Commissions or equivalents, or Health Care Complaints Commissions and a range of other specialist independent integrity bodies, other than those dedicated to police.

Some Core Public Integrity Institutions in Australia, 2004

Auditor-General

Ombud-sman

Police Complaint Authority

Police Integrity Comn

Anti-Corruption Comn

Crime Comn

NSW 1 2 3 4 (ICAC) 5

Cth 1 2 3(ACLEI)

? 4

QLD 1 2 3(Crime & Misconduct Commission)

West Aust

1 2 3(Corruption & Crime Commission)

Sth Aust 1 2 3

Victoria 1 2 3(VIACC inc. OPI)

Tas 1 2 3(Integrity Commission)

Some Core Public Integrity Institutions in Australia, 2010-11

0.00%

0.05%

0.10%

0.15%

0.20%

0.25%

19

90

-91

19

91

-92

19

92

-93

19

93

-94

19

94

-95

19

95

-96

19

96

-97

19

97

-98

19

98

-99

19

99

-00

20

00

-01

20

01

-02

20

02

-03

20

03

-04

20

04

-05

20

05

-06

20

06

-07

20

07

-08

20

08

-09

Cth NSW Qld SA Tas VIC WA

Core integrity agencies – combined staffing as a % of total public staffing (1990-2009)

Core integrity agencies – combined budgets as a % of total public expenditure (1990-2008)

1. Parliamentary Integrity Commissioner

• Still new idea for Australia (only Queensland since 1999)

• New mix of advisory and investigative functions(as also proposed in Victoria)

• Still contentious? Relationship with other integrity bodies?

2. National Integrity Commission

• Is there need? Yes.

• ACLEI – do we expand, or roll-in, or something else?

• Research, evaluation, education, prevention, capacity-building functions (relative e.g. to Australian Public Service Commission, Ombudsman, ANAO) – legislative mandate

• Operational coordination between agencies

• Resourcing… dependent on jurisdiction (people or $$$?)

Key issues

Letting the Sun Shine InNew Developments and Challenges in Government Transparency and Accountability