[Peetwo]

Public Servant Whistle-blowers & the piddling PIDs? -

Another excellent narrative from Stevie E, this time on whistleblowers & the effectiveness of the now 2 yr old Public Interest Disclosure Act (also includes an opinion quote from Nick Xenophon)  :

What’s wrong with wanting more whistleblowers to come forward?

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by
Stephen Easton
14.01.2016


Most people are loath to become whistleblowers, and with good reason. The two-year-old Public Interest Disclosure Act is encouraging more public servants to come forward, but reprisals are still feared. Would a little cash help, too?

It’s a sad fact that whistleblowers almost always bear a high personal cost for exposing illegal and unethical behaviour because in doing so, they put people with responsibilities higher up the food chain in jeopardy.

From early childhood, reporting genuine wrongdoing becomes conflated with telling fibs to get others in trouble. The result is most people have it drilled into them to just keep their mouth shut and mind their own business, or be branded an untrustworthy tattle-tale.

Combined with the actual consequences that have befallen past whistleblowers, there is good reason to keep your head down. The number of public servants coming forward with information about shifty behaviour is on the rise, but the statistics also show fear of reprisals is still prevalent.

“The external disclosure must not, on balance, be contrary to the public interest … and only disclose as much information as is reasonably necessary”

“The external disclosure must not, on balance, be contrary to the public interest … and only disclose as much information as is reasonably necessary”

Would a little money sweeten the deal and encourage more whistleblowers to come forward? South Australian senator Nick Xenophon thinks it might.

He suggests changing legislation to offer a “lump sum or income protection” to people who risk their current job, and their future employment prospects in many cases, by blowing the whistle on corruption. In the US, whistleblowers can get a kind of bounty by sharing in fines paid by organisations they help to prosecute.

“We need to break the culture of silence that can pervade all organisations — governments, corporations, unions and even sporting clubs when something is not quite right,” said Xenophon. “Whistleblowers just don’t come forward in this country because doing so invariably leads to their job and career being destroyed.”

Public sector whistleblowers on the rise

Public sector whistleblowers already have more protection than everyone else — and more than they had in the past — via the Public Interest Disclosures Act, which took effect two years ago. The scheme is supposed to protect their identities, provide a strong basis to launch legal action in response to any threats or actual reprisals against them — or against suspected whistleblowers — and give immunity to civil, criminal or administrative liability for the disclosure.


The Commonwealth Ombudsman’s annual report notes “initial doubts” about the new scheme but says it has been “instrumental” in bringing important information to light and responsible for an 11% increase in disclosures by public servants:

“This has been acknowledged by senior managers as having been beneficial to the administration of their agency.”

The Ombudsman says agencies that had the least PID reports aren’t necessarily squeaky clean. They might just have low awareness of the new scheme, less accessible PID officers, or a “culture that complaint information is not a valuable resource for improving performance”.

The annual report also lists 53 complaints to the Ombudsman in 2014-15 about how agencies reacted to PIDs. Whistleblowers were unhappy with how thoroughly their disclosures were investigated and decisions not to investigate, how well they were kept informed, and even complained of reprisals and breach of confidentiality. The Ombudsman found “shortcomings” in only two cases, which the agencies agreed to address, and reports:

“We have noted a trend in complaints relating to allegations of reprisal action…
“We have also identified a trend for some disclosers who are disappointed with the outcome of a PID investigation to make complaints about alleged reprisal actions.”

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The report also notes some confusion about the confidentiality provisions that make it a crime to expose the whistleblower’s identity and forbid their name being given to the principal officer investigating their PID without consent, and the exceptions to them.

It could be impossible to investigate the issue without knowing the person’s identity, and their refusal is a valid reason to stop the investigation. Their name may also be needed to provide procedural fairness to someone accused of wrongdoing, such as bullying and harassment. The Ombudsman explains:

“The object of the PID Act is not to supplant normal standards required of administrative investigations by public officials. The Act does not override the requirement that an investigator make appropriate enquiries and gather relevant evidence, apply procedural fairness, and ultimately apply the appropriate weight to the evidence as the basis of findings or conclusions.”

Agencies should explain at the outset that whistleblowers will often be asked for permission to reveal their identity in the course of an investigation, the Ombudsman advises, and give “assurances regarding protection from reprisal action, supported by clear action and a commitment to supporting disclosers”.

Public servants should also know that if they make a PID, their identity could be revealed to the principal officer or others investigating the claim anyway, under various exceptions including “for the purposes of the Act”.

So you’re thinking about blowing the whistle…

To be protected by the act, one has to report the information internally first and wait until an investigation has run for more than 90 days (or longer in some cases) before sharing the information publicly.

Whistleblower advocates contend such internal investigations are when things are most likely to turn nasty, in an effort to minimise embarrassment to the organisation and senior staff. To most former whistleblowers, the best form of protection is going public with all the evidence.

Public sector whistleblowers can also make an external disclosure, to the media for example, if they “reasonably believe that the investigation or its outcome was inadequate” according to the Ombudsman’s advice:

“The external disclosure must not, on balance, be contrary to the public interest, and you may only disclose as much information as is reasonably necessary to identify the disclosable conduct.”

There is also a provision for emergency disclosures “if you reasonably believe there is a substantial and imminent danger to health or safety or to the environment” but only what is “reasonably necessary” to avert a looming crisis. The whistleblower is again expected to make an emergency disclosure internally first and wait for an investigation to run its course, unless “exceptional circumstances” apply.

The PID Act never protects anyone revealing anything to foreign officials, anything about the conduct of parliamentarians, or any “proper activities” of intelligence agencies.

Talking to a lawyer doesn’t count as an external disclosure, but there are the usual caveats about not sharing secret spy stuff or anything else sensitive unless the lawyer has the right clearance.

A two-year review of the PID Act is due in the first half of this year.

 
That article got me thinking about the individual PIDS for the ABC aviation safety agencies & the department. Fortunately I've had a bit to do with & looked at the ATSB PID scheme, so I understand the principles & original intent of the PID Act. 

In terms of CASA & ASA PIDS I have heard or read very little about their schemes and until I started searching would not have been surprised if they didn't exist. After all I couldn't imagine McComic and some of those Sociopaths at ASA warmly embracing whistleblowers within their organisations. {Doesn't really fit with the current third Reich culture within does it?}

I was therefore mildly surprised when I came across this McComic signed document - CASA Public Interest Disclosure Procedures - which must have been one of McComic's last parting gifts before leaving his beloved agency, that he had ruled with an iron fist for the previous five years.

After skim reading large parts of this manual, I must admit to not feeling warm & fuzzy about individual employees rights & protections afforded them by the former Director (and in accordance with the PID Act), when contemplating blowing the whistle. In fact I began to wander back to the front page to confirm what I was supposed to be reading, for it was becoming obvious that this manual was really designed to totally demoralise & discourage anyone who had even a vague inkling, notion, thought of whistle blowing. From a Sociopathic point of view the former DAS missive on PIDS, put simply, is a work of art..

I guess, given McComic's track record, I should not have been surprised, the giveaway in hindsight was in the DAS Preface where, for what became standard for a McComic missive, there was the DAS approval for black letter law & the underlying threat (in red):

Director of Aviation Safety Preface

Foreword

As a Commonwealth government authority, CASA must ensure that its decision-making processes are effective, fair, timely, transparent, consistent, properly documented and otherwise in accordance with the requirements of the law.

Most of the regulatory decisions CASA makes are such that conformity with authoritative policy and established procedures will be conducive to the achievement of these outcomes. From time to time, however, decision-makers will encounter situations in which the strict application of policy, in the making of a decision involving the exercise of discretion, would not be appropriate. Indeed, in some cases, the inflexible application of policy may itself be unlawful.

This preface and the following Introduction, explains the way in which the policy and processes set out in this manual are to be used by all CASA’s personnel when making decisions in the performance of their functions, the exercise of their powers and the discharge of their duties. It also explains the processes to be followed if it appears that a departure from policy is necessary or appropriate.

Mandatory Use of Policy and Procedure Manuals

This manual is one of the set of manuals and other documents which comprise CASA’s authorised document set. The authorised document set contains the policy, processes and procedures with which CASA personnel are expected to comply when performing assigned tasks. All CASA personnel are required to have regard to the policies set out in this manual.

Except as described in the Introduction, CASA decision-makers should not depart from these policies, processes and procedures.

John F. McCormick

Director of Aviation Safety

    
& from the Introduction:

Departure from Authorised Policy

Adherence to CASA’s authorised policies will almost always produce an appropriate decision.

As said, however, from time to time there will be circumstances in which the strict application of policy may not result in the "preferable" decision. In these cases it may be appropriate (and possibly necessary) to depart from otherwise applicable policy.

Any departure from policy must be justified in order to ensure that it:

• Is genuinely necessary in the interests of fairness

• Does not inappropriately compromise the need for consistent decision-making; and, of course

• Is not in conflict with the interests of safety.

Without fettering a decision-maker’s discretion, it is therefore expected that appropriate consultation will occur before a decision is made that is not the product of the policies and processes set out in this manual. The prescribed consultation process is described below.

Leaves you scratching your head and asking what on earth this has got to do with internal whistleblowing -

Then the penny drops - it doesn't   Bizarrely McComic & the Iron Ring have conveniently interpreted whistle-blowers to mean decision makers, FOIs, AWIs etc. blowing the whistle on industry pilots, engineers, Operators etc. - UFB

Hmm...wonder if Skidmore has re-written that manual, if he hasn't? - Well he now owns that dreadful indictment and parting gift of the McComic regime...

MTF...P2   

Ps If the former DAS Preface & Intro didn't deter the potential CASA WB, then CH3 Para 3.1 should have done the trick:

3.1 AUTHORISED OFFICERS

The "authorised officers" for the purposes of the PID Act are:

• the Director of Aviation Safety (the Director) as the principal officer" under the PID Act;

• and any authorised officers appointed by the Director.

The Director has appointed the Deputy Director of Aviation Safety and the Associate Director of Aviation Safety as "authorised officers".

A PID can be made to an authorised officer of CASA if the PID relates to CASA and the discloser "belongs" to CASA, or last belonged to CASA – see paragraph 2(a) above.

   
Pps Ironically that means that Skidmore has to at least amend the document because the DDAS & ADAS positions no longer exist.