Letting the Sun Shine In

1. Letting the Sun Shine In New Developments and Challenges in Government Transparency and Accountability A J BrownProfessor of Public Law, Griffith Law School, Gold CoastDirector, Transparency International Australia Parliamentary Library, Canberra, 27 October 2010

2. Australian Research Council Linkage Project TRANSPARENCYINTERNATIONALAUSTRALIA Chaos or Coherence? Strengths, Challenges & Opportunities for Australia’s National Integrity SystemsNational Integrity System AssessmentAustralian 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‘

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)

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

6. 10. Effective disclosure of interests & influences Walking the talk: distributed integrity institutions Integrity from the top: core institutions 8. Statutory frameworks for organisational codes of conduct 1. Commonwealth integrity & anti-corruption commission 9. Relations between organisations & core integrity agencies 2. Governance review councils 13. Professional development for integrity practitioners 3. Standing parliamentary & public oversight mechanisms 14. Freedom of Information 4. Jurisdiction over corporatised etc services 5. Access to administrative justice 11. Whistleblower protection and management 6. Enforcement of parliamentary and ministerial standards 12. Minimum integrity education and training standards Investing in integrity: evaluation and research 7. Independent parliamentary select committees 16. Public review of integrity resourcing & performance measurement 15. Regional integrity resource-sharing and capacity-building 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. ….

8. http://www.griffith.edu.au/whistleblowing http://epress.anu.edu.au/whistleblowing_citation.html

9. Chapter 11.Best Practice Whistleblowing Legislation for the Public Sector: The Key Principles A J Brown, Griffith UniversityPaul Latimer, Monash UniversityJohn McMillan, Commonwealth OmbudsmanChris Wheeler, Deputy NSW Ombudsman

10. Key legislative issues • Public whistleblowing – when is it justified / reasonable? 2. Better organisational systems for encouraging & managingwhistleblowing • 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).

11. 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.

12. Reform of Australian whistleblowing legislation * 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 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) ]

15. Key legislative issues • Public whistleblowing – when is it justified / reasonable? 2. Better organisational systems for encouraging & managingwhistleblowing • 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).

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, 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.

17. 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.

18. Key issues • 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?

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

20. Key issues • 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? • 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 $$$?)

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. Some Core Public Integrity Institutions in Australia, 2004 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.

24. Some Core Public Integrity Institutions in Australia, 2010-11

25. Core integrity agencies – combined staffing as a % of total public staffing (1990-2009)

26. Core integrity agencies – combined budgets as a % of total public expenditure (1990-2008)

27. Key issues • 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? • 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 $$$?)

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