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Opening statement by Australian Public Service Commissioner to the House of Representatives Inquiry into Whistle Blowing Protections within the Australian Government Public Sector, 25 September 2008
The Commissioner
Lynelle Briggs
Lynelle Briggs is the Public Service Commissioner. She has held this position since November 2004.
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Firstly, I would like to thank the Committee for the opportunity to appear at this hearing. My opening remarks this morning will build on the Public Service Commission’s written submission to the Committee.
The option of whistle blowing is a legitimate and necessary form of action within a strong democracy. It enables serious fraud, corruption, and major and systemic failings in government administration to be exposed. It is therefore a valuable safeguard in protecting the public interest, particularly the integrity, transparency and accountability of the public sector. A comprehensive whistle blowing scheme should encourage officials and others to identify legitimate concerns, and provide for their protection in doing so.
For the record, I’d like to make clear that the Government already has provisions to protect whistle blowers in the Public Service Act. This is the only Commonwealth legislation that provides disclosure protection. These provisions were a significant move by the Parliament in 1999.
I wasn’t sure how familiar the Committee was with the current arrangements under the Act, so the Commission’s submission contains relevant background.
The Commission believes that the current system works reasonably well, but there are a number of enhancements that could be made to deliver a more effective whistle blowing system.
Importantly, the system applies only to agencies that are covered by the Public Service Act—which is over half of all agencies or around three-quarters of all people working in the Australian Government sector. We support the extension of whistle blowing protection to cover non-APS Commonwealth employees, contractors and consultants, current and former MoPS Act staff, as well as current and former members of Parliament, through amendment to the Public Service Act.
The current Public Service Act provisions provide whistle blower protections for any allegation of a breach of the APS Code of Conduct. This means that our whistle blowing procedures can encompass a whole spectrum of activities, ranging from inappropriate behaviour to major public interest issues.
Most of the whistle blowing cases that come across our desks are from APS employees complaining about personal employment-related grievances or concerns expressed by members of the public about the conduct of individual APS employees, rather than matters of public interest. This shows there is some misunderstanding of what the current whistle blower system is meant to do.
It is my view that it is possible to fix the current provisions with considered drafting, and that it is preferable to build on the good foundation provided by these provisions, rather than totally reinvent a new system.
One of the key things we need to get right in any redrafting is to clearly identify the boundaries for whistle blowing protection and processes for directing people to the right place. In practice, it can be difficult to know where to draw the line between what is a personal grievance or inappropriate behaviour and what falls under public interest disclosure that requires whistle blowing protection. What is considered whistle blowing in one agency may be viewed differently in another.
It is not helped by the existing legislation which has contributed to this confusion for agencies in the way the processes they are required to have in place for whistle blowing interact with those dealing with allegations of breaches of the Code of Conduct more generally, and the protections that apply in both cases. Sorting out this grey area requires the right skills and judgement.
Some submissions to this Inquiry have suggested casting a broad net to cover all these activities so that any allegation of wrongdoing would be protected. By doing this, it would result in every allegation being formally investigated under a whistle blowing scheme. Elevating all grievances to such a status is not a desirable outcome, nor would it be an efficient one. It would not contribute to the quick and effective handling of such issues at the immediate workplace level. It could also lead to a mushrooming of vexatious and malicious claims across the government sector—which would not be the intended outcome from any new arrangements.
A more sensible approach would have individual grievances being dealt with under existing Code of Conduct investigation provisions by agencies, and more systemic or widespread misconduct falling under a public interest disclosure scheme. It would then be more logical for more serious allegations to be made to and investigated by more senior agency staff or an authorised, independent body with the expertise to exercise appropriate judgement and discretion.
Extension of Commission’s role
Indeed, an effective whistle blowing scheme should enable matters of a serious nature to be reported to an independent officer—outside the agency concerned—who has the discretion to investigate very serious matters expeditiously and to protect the anonymity of the whistle blower where appropriate.
I firmly believe that the Australian Public Service Commissioner is best placed to handle such reports and make these fine judgements.
It would be a natural extension of the Commission’s current role and expertise for the oversight of the new whistle blowing scheme to rest with the Public Service Commissioner.
The Commission already has a comprehensive background in handling sensitive and complex investigations and plays an integral role where employees make allegations about breaches of the APS Values and Code of Conduct as well as more serious issues that might fall under a new public interest disclosure scheme. As part of its existing work, the Commission has a proven track record in research, monitoring, analysis and reporting against a range of public interest disclosure matters and has expertise in communicating new and ongoing arrangements for whistle blowing in the APS, as well as developing education material and providing necessary training.
Obviously, the Commission’s current investigative role would change and grow with an additional function, particularly building on its expertise of conducting reviews and ensuring procedural fairness.
In my submission, I stated that internal agency public interest disclosure procedures should always be followed in the first instance. That is, internal mechanisms should be exhausted before using an alternative avenue for reporting.
I have been reflecting on this scenario, and the evidence before the Committee, and have come to the view that there should be provision for serious, public interest matters to come direct to me. I would then determine the most appropriate way for these reports to be addressed, as I do now for whistle blowing matters that are sent to me direct.
Under this approach, I believe that as an independent officer removed from the agency concerned, I should be able to instigate immediate action where warranted. I should also have the power to protect the identity of the whistle blower, who would be known to me but in some circumstances it would not be appropriate to disclose their identity to the agency.
The current two-tiered arrangements would continue for grievances and inappropriate behaviour allegations, with agencies handling most allegations and me picking up those against agency heads.
If another existing agency were to take on the role, it could take a long while to work out the boundaries of what complaint goes to which agency. It could also potentially create a culture of forum shopping, with complainants approaching several agencies shopping for the best outcome. Providing a ‘one‑stop-shop’ for all disclosures would also avoid the confusion of whistle blowers having to deal with different agencies. Moreover, it would ensure a consistent approach across the Australian Government public sector for the reporting and handling of public interest matters with a high threshold of seriousness.
There are currently a range of employment-related processes that my office deals with under current arrangements, including reviews of employment‑related actions and Code of Conduct investigations. These processes should remain with the Commission as they are well established; they work well and people are familiar with them. It would only cause confusion if these processes were picked up by another agency.
I believe it would also be inefficient and costly for a separate agency to be established for this purpose. We don’t need to go down this road when we already have a system with a strong foundation that can be built on.
What would be protected?
The aim of a new scheme should be to provide an avenue to report serious public interest breaches. By this I mean widespread or systemic misconduct that raise issues of public interest, such as fraud and corruption.
Disclosures about other activities such as maladministration or wastage of public funds could also be included, although these activities do not fall neatly into a ‘public interest’ test. In some instances, it could be difficult to prove that such activities were in the public interest rather than relating to personal grievances.
Where there is doubt over whether an activity should be protected, the person authorised to receive a whistle blowing report should consider if there has been a serious and substantial failure of administration at the cost of the public interest. These are questions requiring careful judgements by experienced officers. The system needs to be flexible enough to deal with the wide range of issues which may arise, and should have clear boundaries and directions, which we would provide.
It is also important to have a system in which agencies themselves can deal with these issues and manage their staff in a way that not only upholds the APS Values but also provides a culture which facilitates reporting of serious issues without adverse consequences. Agencies are often best placed to initially determine alleged wrongdoings within their own context, prior to passing allegations on to another authority. This allows issues to be handled quickly and efficiently, which promotes confidence in the system. It also allows the agency the opportunity to determine whether the report is a genuine disclosure or should be more appropriately dealt with under other provisions.
Be realistic about the system
We shouldn’t be unrealistic about what a new system will achieve. Any allegation, be it a personal grievance or public interest disclosure, can create animosity within the workplace. Care needs to be taken not to raise false expectations that a new system will prevent this from happening 100 per cent of the time.
Having said that, the overall standard of the new whistle blowing scheme should be first class, so that people have sufficient confidence in the system that they can be comfortable that the issues they raise will be dealt with appropriately.
This would include the principle of procedural fairness always being followed and all available evidence being considered in each case. Realistically, though, this may not prevent people from feeling aggrieved if they do not get the outcome they are seeking, but it is the right answer nonetheless.
Any new system would also need managers and agencies to do more to promote the notion of an employee’s duty to report, within a climate of pro-disclosure. This goes to the heart of cultural change within agencies.
The Commission has a strong track record in providing guidance and assistance to agencies, including education, awareness and other learning and development activities that can bring about change. The Commission currently provides a range of whistle blowing support to agencies—from commenting on draft agency whistle blower policies to providing advice on complex Code of Conduct investigations. I believe this sort of support and guidance is crucial to making sure any new system works.
Third party disclosure
I do not think there should be a need for a public interest disclosure to be made to a third party, provided the two-stage process I mentioned earlier is followed properly. If internal agency processes fail, a whistle blower should be able to approach an external integrity agency which has sufficient authority to review and make decisions. I also consider that anybody covered by the new scheme should be able to come to me, or my office, to seek a review if internal agency processes are not working sufficiently.
I believe that this system with access to review processes would be robust enough in itself not to need a third party disclosure.
A ‘scheme’ not just a ‘protection’
Finally, I believe it is timely for the Public Service Act to include a comprehensive whistle blowing ‘scheme’, rather than just the ‘protection’ that currently exists in the legislation. Such a scheme would set out the arrangements and detail of a new whistle blowing system, include notification arrangements, training and guidance, and provide for information about the scheme and its publicity.
Closing
It is vital that people have a clear avenue for raising concerns of a whistle blowing nature, that they are encouraged to do so, and that appropriate mechanisms exist to investigate. We need to protect against wrongdoing, fraud and corruption and encourage employees in a responsible way to identify and report serious misconduct, in order to maintain the integrity of the public sector.
I am convinced that the statutory role of the Australian Public Service Commissioner as an independent person should have the power to exercise judgement to act on a whistle blower report as needed, including to quickly commence an investigation and to protect the whistleblower’s identity.
The Commission already has considerable expertise and standing in handling whistle blower allegations. The Commission can also provide independent, professional and contextual understanding of the broad range of issues likely to be reported.
With those few introductory remarks, I would welcome questions from the Committee.
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