Queensland’s government has leapt to the fore with legislation on when public servants can blow the whistle about official wrongdoing.
Queensland’s new Public Interest Disclosure Bill was introduced into state parliament in August and became law yesterday, after two days of debate.
When the Act commences in a few months, public officials will be legally protected if they take a public interest disclosure to a journalist, provided they have first taken it to an official authority and that authority has:
l Decided not to investigate or deal with the disclosure; or
l Investigated the disclosure but not recommended the taking of any action; or
l Failed to notify the person, within six months of the disclosure, whether or not the disclosure is being investigated or dealt with.
The new section is the simplest, clearest and most liberal provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act — not just in Australia, but anywhere in the world.
The rest of the new Public Interest Disclosure Act also fixes a range of legal problems that have got in the way of an effective whistleblowing regime, since Queensland’s first whistleblowing legislation 16 years ago.
It places more specific requirements on government agencies to support their employees, creates what should be more effective oversight, and hopefully will improve whistleblowers’ access to compensation.
However, it is the new provision affirming when whistleblowers can go to the media, and still receive legal protections, which is historic.
For the past 16 years, so-called whistleblower protection has simply avoided this issue.
The Whistling While They Work research project, led by Griffith University, confirmed the importance of having strong new drivers for organisations to take whistleblower protection more seriously.
Extending protection to whistleblowers who go public, if government does not act, is one of the key drivers for change.
The new provision will guarantee that government agencies make better efforts to listen to whistleblowers, act promptly on their concerns, and do their best to protect them from reprisals. Because now, if they don’t, senior government managers and ministers can expect to see the problem aired more rapidly in the public domain.
It is a true “sunlight” provision. If a government agency or integrity authority fails to act when it should, there are no arbitrary time limits or other artificial restrictions on when a public servant may go public.
As in NSW, there is a requirement to wait for six months if a whistleblower simply does not know whether or not the agency is doing anything.
However, if it is clear that an agency is not dealing with a disclosure, including a “deemed refusal” to act, or as soon as the agency has completed its inquiries and if it decides not to act, then a reasonable public servant can go to the media immediately.
This could be days, hours or even minutes after making the original disclosure, if the circumstances were sufficiently urgent.
The only requirement is that, at all times, the public official must have an honest and reasonable belief that the information they are disclosing is about official misconduct, serious maladministration or the like, which needs to be rectified.
If an agency’s response is professional, and the outcome is properly explained to the whistleblower, the whistleblower will still need to be sure they have a reasonable basis for believing that outcome is wrong.
The provision is not a licence for disgruntled public servants to simply complain, and rush to the media with their complaints.
Public officials will need to stop and be sure that their concerns remain based on a reasonable belief that wrongdoing needs to be rectified — or they may run the risk they do now, that going public will leave them exposed to criminal, disciplinary or civil action.
However, this test of reasonableness is much lower than in NSW, the only other Australian jurisdiction to have any similar provision so far.
In NSW, it is not enough for the whistleblower to have a reasonable belief that the disclosure is substantially true: the Act requires it to be substantially true.
No one knows who is meant to make this ultimate assessment, or how they are meant to make it.
Instead the Queensland test is similar to, but slightly simpler and more flexible than Britain’s Public Interest Disclosure Act. Until now, that legislation has been the most liberal in the world.
The Queensland test is also more straightforward than the equivalent proposal in the federal Labor government’s proposed whistleblowing protection regime for federal public servants.
In March this year, the federal government proposed that before a disclosure to the media will retain legal protection, the public interest in disclosure must “outweigh countervailing public interest factors”, with examples including confidentiality of Cabinet deliberations. Being confident they have the benefit of such a balance is a more onerous and uncertain test for a single public servant to try to meet.
The federal proposal does recognise there may also be some circumstances where a public servant could justifiably go public, without first going to any proper authority at all.
However, on the important issue of when whistleblowers are entitled to go the media with any public interest disclosure as a last resort, the Queensland section is now the most simple and flexible.
Following on the Bligh government’s leadership of reform of Freedom of Information legislation, and its conversion to Right to Information legislation, this reform sets a new standard for other jurisdictions to follow.
It is rare for any incumbent government to take such major steps to open up government to public scrutiny. Normally only political parties that have been in opposition for some time, and have forgotten what it’s like to be truly held to account, make promises to improve the machinery of public integrity.
Queensland’s new Public Interest Disclosure Act is clearly different.
A.J. Brown is professor of public law, Griffith Law School, and was project leader of the Australian Research Council ‘Whistling While They Work’
project.
Read the article in The Australian, HERE
And,
Subject: USA – WHISTLEBLOWER PROTECTIONS EQUAL SAFER FOOD, FEDERAL WORKERS
Survey Results From FDA, USDA Workers Eye-Opening
(Washington, D.C.) – According to a new survey, scientists from Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) overwhelmingly believe that if they, their coworkers, and food industry employees enjoyed solid whistleblower protections, food consumed in America would be safer to eat.
Earlier today, GAP coalition partner Union of Concerned Scientists released a survey regarding food safety oversight. The UCS survey was given to thousands of scientists and meat inspectors at the FDA and USDA – of which over 1,700 responded. Specifically, by a margin of 70 percent to 2 percent, survey respondents said that “establishing strong whistleblower protections for private or public employees who report problems affecting the food supply” would improve rather than worsen food safety.
The Government Accountability Project (GAP) works with many federal and corporate food safety whistleblowers to protect them from retaliation, and advocates for stronger whistleblower rights.
“These survey results are proof that federal employees believe some of our food is unsafe, but can’t act out to tell us,” said GAP Food Integrity Campaign Director Amanda Hitt. “Our clients make food integrity disclosures at great peril to their personal and professional lives. They deserve the chance to safely speak up on behalf of public health, but without the significant hurdles and backlash that current whistleblowers have to endure.”
The UCS studies confirm what numerous GAP clients have stated. GAP client Dr. Dean Wyatt, for example, is a Public Health Veterinarian for USDA Food Safety Inspection Service (FSIS). Dr. Wyatt discovered gruesome and distasteful violations of humane handling regulations – not at just one slaughterhouse, but two. Each time, Dr. Wyatt voiced concerns to his supervisors. However, FSIS officials continually chose to ignore shocking reports of inhumane treatment and safety violations. Instead, FSIS reprimanded him on several occasions for trying to hold the incompliant plants accountable, and subjected him to a slew of
blatant retaliatory actions.
More on the UCS survey can be found:
http://www.ucsusa.org/news/press_release/fda-and-usda-scientists-survey-0402.html
via Isla
