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Letting the Sun Shine In New Developments and Challenges in Government Transparency and Accountability A J Brown Professor of Public Law, Griffith Law.

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Presentation on theme: "Letting the Sun Shine In New Developments and Challenges in Government Transparency and Accountability A J Brown Professor of Public Law, Griffith Law."— Presentation transcript:

1 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

2 Chaos or Coherence? Strengths, Challenges & Opportunities for Australia’s National Integrity Systems National Integrity System Assessment Australian Research Council Linkage Project - Report (2005) TRANSPARENCY INTERNATIONAL 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‘

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

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

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6 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

7 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. ….

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9 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

10 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). Key legislative issues

11 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 Commonwealth Government Response – Senator the Hon Joe Ludwig, Special Minister of State, 17 March Towards a federal Public Interest Disclosure Act…

12 Reform of Australian whistleblowing legislation JurisdictionOriginalReformedTitle South Australia*1993PendingWhistleblowers Protection Act Queensland* Public Interest Disclosure Act ACT1994PendingPublic Interest Disclosure Act New South Wales Public Interest Disclosure Act Commonwealth1999UnderwayPublic Service Act, s.16 Victoria2001UnderwayWhistleblowers Protection Act Tasmania Public Interest Disclosures Act Western Australia2003PendingPublic Interest Disclosure Act Private sector*2004Underway?Corporations Act, Part 9.4AAA NT2008--Public Interest Disclosure Act * Private sector coverage

13 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).

14 New Queensland Act – September 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) ]

15 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). Key legislative issues

16 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, ). 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.

17 Australian Commission for Law Enforcement Integrity (ACLEI) -- anti-corruption commission announced Law Enforcement Integrity Commissioner created debate from outset over scope, jurisdiction -- first three-year review by Joint Committee (Chair: Melissa Parke) -- Customs & Border Protection added from 1 Jan 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.

18 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

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

20 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

21 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.

22 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’.

23 Auditor- General Ombuds- man Police Complaint Authority Police Integrity Com n Anti- Corruption Com n Crime Com n NSW1234 (ICAC)5 QLD123 (Crime & Misconduct Commission) West Aust 123 (Corruption & Crime Commission) Sth Aust 123 Cth123 Vic12 Tas12 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

24 Auditor- General Ombud- sman Police Complaint Authority Police Integrity Com n Anti- Corruption Com n Crime Com n NSW1234 (ICAC)5 Cth123 (ACLEI) ? 4 QLD123 (Crime & Misconduct Commission) West Aust 123 (Corruption & Crime Commission) Sth Aust123 Victoria123 (VIACC inc. OPI) Tas123 (Integrity Commission) Some Core Public Integrity Institutions in Australia,

25 Core integrity agencies – combined staffing as a % of total public staffing ( )

26 Core integrity agencies – combined budgets as a % of total public expenditure ( )

27 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

28 Letting the Sun Shine In New Developments and Challenges in Government Transparency and Accountability


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