Thank you very much, Mr. Chairman. I'd like to thank the committee for holding its hearing late in the day, which is morning our time, obviously, but it's certainly better than if you were hearing from me at about midnight. Thank you very much for your co-operation with that.
It's a very great honour to address the committee, because the legislation you're reviewing is, obviously, very important for Canada and for public sector integrity.
Here's a bit of background on me. I have a mixture of having worked in government, and worked with all levels of government here in Australia. Obviously, being a federal system, we think that our systems are quite comparable in many ways, and obviously, we share lots of political traditions. From my own visits to Canada, and having met with the Integrity Commissioner and other stakeholders in Canada, I certainly think there's an enormous amount we can both learn from but also possibly contribute to the questions you need to resolve.
My own background is both having worked in government and as a researcher at Griffith University here in Australia. I conduct large-scale research in partnership with all the government agencies that have responsibility for whistle-blowing oversight here, both at a federal level but also at a provincial level. I work very closely with those who have responsibility for overseeing the whistle-blowing processes here over many years now.
I have five main reflections about your legislation, and I might just run through them really quickly. Then I'll come back to them if they're not touched on further in questions.
One is that I often get to advise governments here when they've inherited a piece of legislation that is substandard, shall we say, not doing the job as well as it should be. There's often a choice between whether to simply try to amend the legislation and improve it, or to go back to square one and replace it with something that would be simpler and easier for everybody to operate.
The answer to that varies, depending on the circumstances, but here in Australia, as a result of my recommendations, governments have done both, both amended or replaced the entire piece of legislation. Quite clearly, in my view, based on my experience and observations of your current federal legislation, I would replace it. I would go back to square one because of its complexity and because of its tortuous expression. That's the first thing I would say.
Whether you're replacing it or simply amending it, the second thing is that there are a large number of technical improvements that I think are pretty obvious, vital but easy improvements. They include some of the things the Integrity Commissioner is clearly recommending, as well as everybody else, such as the removal of unnecessary good faith requirements and thresholds, and the ability of whoever is administering the act or conducting the investigations to take information from beyond simply the public sector.
These are the sorts of things that should be what we call in Australia no-brainers. There are a wide range of other provisions of the legislation that I would regard as substandard by comparison with best practice drafting in our legislation, or any other legislation. The fact that there are so many of those is partly what leads me to the conclusion that you would be better off doing a wholescale rewrite, rather than having to have so many amendments.
The third thing is that there's a fundamental problem with the legislation in terms of the clarity and combination of roles of the Integrity Commissioner. I've met two of your integrity commissioners, including the founding commissioner, Madam Ouimet.
It has always perplexed me that the roles of investigating disclosures and having responsibility for protecting whistle-blowers are combined and loaded onto the same Integrity Commissioner in the way that they are. Not only are both roles loaded on, but they're loaded on in a very confused way. The roles are not distinct. I think that's a very fundamental issue for the design of your whole regime.
In retrospect, I had very interesting conversations with Madam Ouimet. I talked to her about the importance of the other integrity agencies in the system, especially the Auditor General. Little did I know that the Auditor General was investigating her conduct at the time. It just brought home to me that the system as a whole does not seem to be well organized. That, then, obviously creates enormous problems for these particular roles.
The fourth thing is that I think the avenues under the act for achieving remedies for whistle-blowers who do suffer detrimental action are certainly not international best practice. They really fall short of international best practice in at least three ways.
One, it's not clear to me why you need to have the commissioner act as a gateway to people being able to secure their legal remedies, or their entitlements to legal remedies, from a tribunal or from whoever the independent umpire would be, and why you wouldn't enable people to just go straight to that umpire and test out their claims there, if necessary, and preserve the role of the commissioner as being more administrative but also more proactive in putting more effort into those cases that clearly are deserving, while not preventing people from being able to test their own claims. That's unclear to me. In other jurisdictions that simply doesn't occur.
The second problem in relation to the remedies is that there are so many restrictions on when the commissioner can act in the first place. The requirement under subsection 23(1), that the commissioner is not permitted to take an interest in cases that anybody else is already involved in, is a pretty retrograde provision, in my view. In other jurisdictions it can certainly be a discretion not to get involved if other agencies or remedial avenues are already involved, but there shouldn't be a blanket prohibition on that. The commissioner can then go wherever they need to in order to sort out whatever the problems are.
The third issue in relation to remedies is a very general problem. It's an international problem. Many of the adverse impacts suffered by whistle-blowers will not ever be the types of adverse impacts that can be tracked back to a deliberate reprisal. Many of them are the result of agency incompetence. Many of them are the result of agencies simply having not good procedures for protecting whistle-blowers, or not following procedures. Very often those mistakes, or the failure to deliver support, are not the result of active reprisals or active decisions of any kind. They're omissions that are negligent in retrospect. Really, the whole framing of reprisals as being the trigger for achieving remedies actually misses the point in possibly 90% or more of the cases where whistle-blowers suffer detriment.
Here in Australia, the most recent law reform that is now under way is framed quite differently. It's framed not only in terms of direct and deliberate reprisals but also in terms of where there is a failure on the part of somebody to fulfill a duty to protect and support, or to control others who are meant to protect and support, and then damage occurs to the whistle-blower, a liability will arise, and an entitlement to remedies and damages will arise. That's quite different from this focus on direct and deliberate reprisals.
Those are three things in relation to remedies.
The fifth and final overall point I want to make is that, from what I know of the situation there for the federal government in Canada, the commissioner's role is very, very reactive. This is a problem for agencies everywhere in the world that are charged with whistle-blower oversight and protection: many are simply reactive. If they're reactive, then you can't expect the systems to work.
The front-line responsibility for whistle-blower protection, in the lion's share of cases, will lie with CEOs, with agencies, and with what they do internally. The only way the system will work is if the Integrity Commissioner or the oversight agency has a very active role in making sure that those systems and procedures at the agency level are in place, that they're working, and that the discretions being applied by CEOs and their staff are actually fair and reasonable. That's where all the prevention efforts lie to actually make sure the system is working properly and that there can be confidence in it.
Without knowing all the details of the Integrity Commissioner's role, I would say that the Canadian system, even compared with our systems, which are more reactive than they should be, does seem to be very reactive, driven simply by complaints rather than by a proactive approach to implementing the scheme and making sure that it's properly embedded at the agency level and actually working.
Mr. Chairman, those are my five overall opinions about your legislation, from the other side of the world. I'm happy to help the committee however I can.
I think with any piece of legislation, it begins as a very good statement of legislative intent and very good objects. In all of the Australian legislation more or less, and certainly the ACT and the federal legislation, you will find very good, clear, and comprehensive objects. I think some of them have been repeated for the committee from the federal public interest disclosure act.
If all of those key objects are honoured in a clear and systematic way, which is intelligible for most whistle-blowers as well as for those administering the scheme, then it almost doesn't matter what the legislation looks like; it should work. That's one of the advantages of the ACT legislation. It's one of the great disadvantages of your legislation that it doesn't have very comprehensive objects, as well as all the tortuous complexity that it has.
I think it's good to be clear on the objects. The objects really need to be an overall object of supporting public integrity and accountability; facilitating disclosures at all levels through the system; ensuring that disclosures are properly dealt with, and investigated or responded to, at all levels of the system; and a clear object of protecting and supporting whistle-blowers.
I think if those are carried through properly in a simple and straightforward way by good draftspeople, then.... I'm not a big fan of copying other people's legislation. One of the beauties of the ACT legislation is that it happens to be well drafted by very competent draftspeople who went back to square one and designed a very good scheme.
I know you automatically look at the federal legislation, so you looked at our Public Interest Disclosure Act 2013. It's a very complex and pretty poorly drafted piece of legislation.
The committee should be aware that it was reviewed last year as part of the statutory review, similar to the one that you're performing now. There's a very comprehensive report in existence by a gentleman called Mr. Philip Moss, who was engaged by the government to conduct that review. He made specific recommendations for improving the act—many recommendations—but he also recommended that the government look at stripping the entire piece of legislation back to a simpler, more principle-based approach, like the best state or provincial legislation we have.
It's those sorts of assessments that make me come around to thinking you're in a situation where stripping it back to first principles is something you should be considering.
It's a very good question.
The reason some jurisdictions in Australia do have a reverse onus.... Where the reverse onus appears, it usually appears in relation to the criminal offence of reprisal and proving that. Many of us don't focus on that because it's almost impossible to prove criminal reprisals in any circumstances anyway. Also, criminalized reprisals are a distraction from the real issue, which is achieving remedies for people who suffer adverse outcomes from all the things that are not deliberate and not criminal, but are detrimental actions, both acts and omissions, deliberate and undeliberate.
When it comes to the broader test of liability or if an entitlement to remedies is raised, generally speaking in Australia, the wording is very broad. If there was any detrimental action and there was a public interest disclosure involved, then the language is already very broad to say that the detrimental action is compensable, so that it doesn't have to deteriorate into the question of proving that there was any detriment or that the detriment was caused by intention to cause a reprisal.
That's one reason why it's been less of a focus here. The thresholds would be automatically more liberal, but that doesn't mean that it hasn't been a problem and there are some quite strong views that there needs to be a clearer reversal of that onus.
I guess the reason why I don't focus on it so much is that it really is a question that arises in relation to that criminal or disciplinary liability for reprisals. In my view, that's substantially a distraction from the main gain, which is making sure that civil remedies are available.
Yes, certainly. The front line really starts with what happens inside the agency, as I said, because the vast of majority of individuals don't even ever contemplate going outside and would see even the Integrity Commissioner as a last resort, let alone going to the media.
There does need to be protection for people who go to the media in reasonable circumstances, and currently that's another area of deficiency in your legislation. Those rules aren't of very high quality either.
The reality is that unless the regime is working in a way that means there is clear guidance, there is support for agencies to be getting it right in the first place internally, and that's being evaluated and monitored, then everything is reactive.
The key ingredients of the more proactive system are ones that are based on a level of mandatory reporting by agencies as to what disclosures they've received and how they're handling them. All our oversight regimes are now moving in the direction of automatic mandatory disclosure in real time, or close to real time, so that the oversight agency actually knows what the agency is handling and then can use their own risk indicators to say, “Okay, here are matters that we need to take a closer interest in right from the word 'go', rather than waiting for it to all be mishandled and then for a complaint of reprisal to come to us later, or for it to go to the tribunal later.”
Part of the skill and the capacity of the oversight agencies here is starting to identify that information, having that information, so that they know what agencies are handling, and then having those risk indicators to be able to say that these are the ones that they want to know more about now or that they will get involved in conciliation now, because it's high risk and high conflict already, or because the confidence of the whistle-blower internally is already falling apart in terms of what's happening in the agency.
Those are some of the ingredients of a more proactive regime, but it requires that sort of automatic mandatory reporting from the agency to the oversight agency. Then it requires the oversight agency to have both the will and the capacity to be able to be both monitoring and stepping in and then proactively intervening in individual cases where there are high-risk cases, where the problems, conflict, and damage will manifest. But if things are done differently early in the piece, it doesn't necessarily have to be that way.
I'm not sure how you embed it in legislation, but one thing that we know is crucial to making a good whistle-blowing system work in an organization is having the organization use its own history to get a positive message out within the organization about how real cases have been handled, using appropriate cases.
That approach seems crucial to their success. It's not so much public recognition as recognition within the organization, in a demonstration by the organization not only that it promises to protect people but is using its own case history to illustrate how it handles things in that organization. Few things can be more powerful than that. It's a form of recognition, but it's not focused on the individual. It's focused on the benefit of what the individual has done for the organization and for the public interest by being prepared to speak up. Also, it demonstrates that the organization has the capacity to deal with it well.
As for public recognition, I think attitudes are changing towards whistle-blowing. I think there's a much broader understanding of the public benefit of whistle-blowing and that whistle-blowers come in all shapes and sizes, but that very few are intending to ever become public figures, let alone martyrs, in the process.
I think, then, that it's really helpful when the government and the Parliament and the Integrity Commissioner can find ways of using those cases to demonstrate to people why whistle-blowing is important, and why it's valued, more importantly.
As for rewards and awards, we've had a great case in Australia in which one of our public health system whistle-blowers was the local hero and received a local hero award on our national Australia Day—the Australian of the Year award, which is very high-profile; it's a great honour. That type of recognition is not specific to whistle-blowing at that level, amongst the other health people, people finding cancer cures and other things. To have that whistle-blowing function recognized in that way was very powerful.