Transcript Presentation title - Parliament of Australia

Letting the Sun Shine In
New Developments and Challenges in
Government Transparency and
Accountability
A J Brown
Professor of Public Law, Griffith Law School, Gold Coast
Director, Transparency International Australia
Parliamentary Library, Canberra, 27 October 2010
Chaos or Coherence? Strengths, Challenges &
Opportunities for Australia’s National Integrity Systems
National Integrity System Assessment
Australian Research Council Linkage Project - Report (2005)
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‘
Australian Research Council
Linkage Project
TRANSPARENCY
INTERNATIONAL
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
27/06/2005
Australian 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 University
Paul Latimer, Monash University
John McMillan, Commonwealth Ombudsman
Chris Wheeler, Deputy NSW Ombudsman
Key legislative issues
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 other
management obligations (bullying, OH&S, Fair Work).
Towards a federal Public Interest Disclosure Act…
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.
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) ]
Key legislative issues
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 other
management obligations (bullying, OH&S, Fair Work).
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 Commissioner
to investigate and deal with corruption issues involving
any Commonwealth public official or agency.
Key issues
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?
Review of Victoria’s Integrity and Anti-Corruption
System (May 2010)
Key issues
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 $$$?)
Relationships between NSW Public Sector Agencies and Integrity
Agencies and Organisations (Smith 2005)
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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.
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’.
Some Core Public Integrity
Institutions in Australia, 2004
AuditorGeneral
Ombudsman
Police
Complaint
Authority
2
Police
Integrity
Comn
3
AntiCorruption
Comn
Crime
Comn
4 (ICAC)
5
NSW
1
QLD
1
2
3
(Crime & Misconduct Commission)
West
Aust
1
2
3
(Corruption & Crime Commission)
Sth
Aust
1
2
Cth
1
2
Vic
1
2
Tas
1
2
3
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.
3
Some Core Public Integrity
Institutions in Australia, 2010-11
AuditorGeneral
Ombudsman
Police
Complaint
Authority
Police
Integrity
Comn
AntiCorruption
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
Victoria
1
2
3
(VIACC inc. OPI)
Tas
1
2
3
(Integrity Commission)
3
Core integrity agencies – combined staffing as a % of
total public staffing (1990-2009)
Cth
NSW
Qld
SA
Tas
VIC
WA
0.25%
0.20%
0.15%
0.10%
0.05%
2008-09
2007-08
2006-07
2005-06
2004-05
2003-04
2002-03
2001-02
2000-01
1999-00
1998-99
1997-98
1996-97
1995-96
1994-95
1993-94
1992-93
1991-92
1990-91
0.00%
Core integrity agencies – combined budgets as a % of
total public expenditure (1990-2008)
Qld
Vic
NSW
WA
SA
Tas
Cth
0.25
0.20
0.15
0.10
0.05
2007-08
2006-07
2005-06
2004-05
2003-04
2002-03
2001-02
2000-01
1999-00
1998-99
1997-98
1996-97
1995-96
1994-95
1993-94
1992-93
1991-92
1990-91
0.00
Key issues
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 $$$?)
Letting the Sun Shine In
New Developments and Challenges in
Government Transparency and
Accountability