Couper, Helen --- "Whistleblowing - The Importance Of Managers In Implementation Of The Legislation" [2010] AIAdminLawF 13; (2010) 62 AIAL Forum 61

WHISTLEBLOWING – THE IMPORTANCE OF MANAGERS IN IMPLEMENTATION OF THE LEGISLATION

Helen Couper ^[*]

The report of The Standing Committee on Legal and Constitutional Affairs Inquiry into whistleblower protections within the Australian Government public sector recognises that legislation alone is not sufficient for promoting accountability and protecting whistleblowers. Mr Dreyfus QC has said "A shift in culture needs to take place to foster a more open public sector that is receptive to those who question the way things are done".

The Queensland experience supports this notion.

Following the Fitzgerald Inquiry (The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct) of 1987-1989, Queensland became the first Australian jurisdiction to introduce legislation to protect whistleblowers. The original interim legislation was followed by the enactment of the Whistleblowers Protection Act 1994.

Despite this state having the oldest and most comprehensive legislation^[1], employee confidence in whistleblower protection in Queensland is low^[2]. Interestingly, Queensland managers have a significantly higher level of confidence than the average employee.

Generally and not surprisingly, there is higher trust in management among employees who only ever report wrongdoing internally and lower trust in management among those who report externally at any stage, including after having reported internally in the first instance.

These and other findings^[3] of the Australian Research Council Linkage Project – Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in Public Sector Organisations^[4] highlight the importance of the role of public sector managers in the practical implementation of the whistleblower protection legislation and in shifting culture^[5]. This is of particular significance in the current integrity framework in Queensland.

The Crime and Misconduct Act 2001 (CM Act) established a framework for joint responsibility on the part of the Crime and Misconduct Commission (CMC) and public sector agencies, within which they could achieve continuous improvement in the integrity of, and reduce the incidence of misconduct in, the public sector.

The ‘devolution principle’ in the CM Act^[6] provides that, generally speaking^[7], action to prevent and deal with misconduct in an agency should generally happen within the agency itself. It recognises that achieving a misconduct resistant public sector with a strong culture of integrity cannot be achieved alone through strategies employed by an external oversight body; there must be commitment within the agencies themselves.

In the experience of the CMC, to achieve the purposes contemplated by the Act, public sector managers at all levels, particularly at the local level, must accept responsibility for the conduct of their staff and the practices of their workplace. It is essential that managers create a learning environment in the workplace in which people feel able to raise issues of concern. Public sector managers must own the problems and their solution, rather than see them as solely the business of an oversight body.

The CMC has embarked upon a project for the implementation of further devolution of responsibility from the CMC to the agencies and, within the agencies, to managers at the appropriate local level. An agency’s whistleblower policy is an important element in the integrity framework that supports devolution.

Clearly the way in which an agency implements whistleblower protection legislation, the role of managers and an agency’s culture are intertwined. An agency’s internal policy must be accessible to everyone within the organisation and set the appropriate tone.

Many agencies have failed to conduct ongoing awareness sessions and education programs throughout the organisation. Often, it seems that the only people who are aware of, and possibly understand, an organisation’s whistleblower regime - and the policy, procedures and process - are those in the particular business unit who have responsibility for it. It is essential that an agency ensures that everyone has a shared understanding of what the regime means in practical terms, not only for the whistleblower but also for all the stakeholders who may be affected in some way. It is too late during, or after, the event to try to ensure that all concerned develop an understanding of and trust in the process. An initial agency awareness and education campaign should be followed up, with managers regularly re-enforcing the message in their workplace.

Achieving the right approach and balance in policy and procedures is important. For example, too legalistic an approach can lead to unintended consequences. One agency has developed a formal – and often lengthy – legalistic process of whistleblower certification, resulting in a letter to the employees concerned advising of their status. In some minds, this process has created the impression that the agency’s focus is not on encouraging people to come forward and in protecting them, but rather on ensuring that the agency is not sued by the subject of the public interest disclosure or otherwise adversely affected, as a result of using information provided by a person who is not, technically, a whistleblower. The ‘certificate’ has been seen by some to support the belief that a whistleblower is totally immune from any action, even appropriate and reasonable management action. Still others, who have raised issues of concern in good faith but who have not been deemed technically to be whistleblowers, have felt unsupported and left adrift to suffer the consequences of coming forward. Such an approach does nothing for an agency trying to develop a strong culture of integrity and continuous improvement and a workplace in which there is respect for one another and positive encouragement to raise genuine concerns. In particular, it seems that professional jealousies and perceived unwarranted and scandalous imputations on reputation need to be managed.

Agencies need to develop sound processes to deal with whistleblowers and their disclosures and managers’ capability to implement the processes.

Managers must be able to recognise a public interest disclosure and understand its implications, have good decision-making skills, carry out effective performance management, be able to have difficult conversations with staff, know when and how to appropriately share information, have skills in gaining the trust of staff, be prepared to seek advice and support, promote continuous improvement, and through their actions embed a culture of integrity and accountability.

Inadequate procedures and processes and / or a manager getting it wrong can result in forests of paper destroyed, a dysfunctional workplace and agency, unnecessarily ruined reputations, lost public confidence and years of effort to undo damage done and achieve a positive shift in culture in the workplace.

For example, in one case a manager’s uninformed dismissive response: ‘trust me, there is no problem’ to a concern raised by a dedicated hard-working but ‘difficult’ officer led that officer to suspect impropriety in a decision not to prosecute a breach of legislation and to make a complaint to the CMC. The decision not to prosecute was perfectly proper but management had not been prepared to share information with the officer to explain why he need not have concerns. Managers at various levels resented the complaint and made it known, the officer suffered reprisals and lost faith and trust in the organisation to which he had dedicated a large part of his working life and ultimately left. Others within the workplace fell into two camps in their view of what had occurred.

In another agency, the manager did not recognise that a public interest disclosure was being made to him. He considered the subject of the disclosure to be one of his better officers and believed that it was unlikely that there was cause for concern. He also thought, wrongly, that natural justice required him to tell the subject about the complaint. Having been told by the manager that a complaint had been made about him, the subject and his colleagues proceeded to guess who in the workplace was the source of the complaint and to make that person’s life a misery. Their victim ultimately retired medically unfit as a result of the reprisal action taken against him. Unfortunately for all concerned, they had guessed incorrectly, the victim was not the whistleblower. Needless to say, none of this did anything for the actual whistleblower’s, and his supporters’, level of trust in management and colleagues.

Senior management needs to set the standard and actively be seen to support whistleblowers.

One chief executive has decided that he will personally meet with every whistleblower in his agency to thank them for coming forward and assure them that he will take steps to investigate their concerns and take any appropriate action. He considers the time well spent compared with the considerable waste of time and resources that had resulted from a previous failure of management to deal appropriately with a disclosure. What had started with one employee in a small business unit being ignored when he raised some concerns - which seemed far fetched but which ultimately proved to have foundation – escalated into a number of employees over a period of years making a series of complaints – which did not have substance - including complaints to the media.

Senior management support of whistleblowers also needs to be ongoing. In one telling case, an entire large business unit within an agency became disenchanted with, and distrustful of, senior management and ultimately dysfunctional, because of a perceived failure of management to support the original whistleblower and subsequent internal witnesses, who came forward during an investigation and subsequent court proceedings. While senior management are firmly of the view that their processes are best practice, the manager of the business unit now actively discourages his staff from whistleblowing because of the serious emotional impact the particular case has had on his staff.

In another example of a situation not well handled, a whistleblower and her supporters recorded every conversation with their manager and claimed every management decision concerning them, with which they did not agree, as being a reprisal. Numerous complaints were made over a lengthy period of time and at one stage their grievances were aired publicly, an action which caused their colleagues to react very badly. It took tens of thousands of dollars and the involvement of two external agencies and an external consultant to try to resolve the situation.

These are probably extreme examples of what can occur but they are informative. There are many other more minor examples that equally demonstrate the vicious circle that can be created by an unhealthy culture, an agency’s poor implementation of whistleblower legislation and managers who do not have the necessary capability to give effect to the legislation or contribute to a positive shift in an agency’s culture.

Whistleblower protection or public interest disclosure legislation, in effect, seeks to treat symptoms and to some extent to cure the ills of unhealthy public sector agencies. However, the effectiveness of the treatment relies upon a strong functional immune system within the agencies. If that system is not operating effectively, symptoms might be relieved in the short term but an agency’s health can only deteriorate further over time.

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Endnotes

[*] Helen Couper is Director, Integrity Services, Crime and Misconduct Commission, Queensland. This paper was presented at the 2009 AIAL National Administrative Law Forum, Canberra, 6 August 2009.

[1] Brown, A.J. 2006, Public interest disclosure legislation in Australia: towards the next generation, Issues paper, Commonwealth Ombudsman, NSW Ombudsman and Queensland Ombudsman

[2] This finding, based on results of a survey conducted in a number of 'case study public sector agencies' from various jurisdictions, is in relation to employees who believed they were covered by whistleblower protection legislation. Whistling While They Work Report 2008

[3] The results confirmed the importance of organisations’ internal disclosure procedures and increased their responsibility to manage reporting well on an internal basis.

[4] Whistling While They Work Report 2008 and 2009 Report (released at the 2009 Australian Public Sector Anti-Corruption Conference).

[5] Three Queensland integrity agencies – the Crime and Misconduct Commission, the Queensland Ombudsman and Public Service Commission – have responded to this research by developing a series of advisory resources to ensure that practical advice in regard to whistleblowing is available across the public sector.

[6] Section 34

[7] Subject to the principles of co-operation with the CMC and public interest and the agency’s capacity