Thank you very much, Mr. Chairman. I'd like to thank the committee for holding its hearing late in the day, which is morning our time, obviously, but it's certainly better than if you were hearing from me at about midnight. Thank you very much for your co-operation with that.
It's a very great honour to address the committee, because the legislation you're reviewing is, obviously, very important for Canada and for public sector integrity.
Here's a bit of background on me. I have a mixture of having worked in government, and worked with all levels of government here in Australia. Obviously, being a federal system, we think that our systems are quite comparable in many ways, and obviously, we share lots of political traditions. From my own visits to Canada, and having met with the Integrity Commissioner and other stakeholders in Canada, I certainly think there's an enormous amount we can both learn from but also possibly contribute to the questions you need to resolve.
My own background is both having worked in government and as a researcher at Griffith University here in Australia. I conduct large-scale research in partnership with all the government agencies that have responsibility for whistle-blowing oversight here, both at a federal level but also at a provincial level. I work very closely with those who have responsibility for overseeing the whistle-blowing processes here over many years now.
I have five main reflections about your legislation, and I might just run through them really quickly. Then I'll come back to them if they're not touched on further in questions.
One is that I often get to advise governments here when they've inherited a piece of legislation that is substandard, shall we say, not doing the job as well as it should be. There's often a choice between whether to simply try to amend the legislation and improve it, or to go back to square one and replace it with something that would be simpler and easier for everybody to operate.
The answer to that varies, depending on the circumstances, but here in Australia, as a result of my recommendations, governments have done both, both amended or replaced the entire piece of legislation. Quite clearly, in my view, based on my experience and observations of your current federal legislation, I would replace it. I would go back to square one because of its complexity and because of its tortuous expression. That's the first thing I would say.
Whether you're replacing it or simply amending it, the second thing is that there are a large number of technical improvements that I think are pretty obvious, vital but easy improvements. They include some of the things the Integrity Commissioner is clearly recommending, as well as everybody else, such as the removal of unnecessary good faith requirements and thresholds, and the ability of whoever is administering the act or conducting the investigations to take information from beyond simply the public sector.
These are the sorts of things that should be what we call in Australia no-brainers. There are a wide range of other provisions of the legislation that I would regard as substandard by comparison with best practice drafting in our legislation, or any other legislation. The fact that there are so many of those is partly what leads me to the conclusion that you would be better off doing a wholescale rewrite, rather than having to have so many amendments.
The third thing is that there's a fundamental problem with the legislation in terms of the clarity and combination of roles of the Integrity Commissioner. I've met two of your integrity commissioners, including the founding commissioner, Madam Ouimet.
It has always perplexed me that the roles of investigating disclosures and having responsibility for protecting whistle-blowers are combined and loaded onto the same Integrity Commissioner in the way that they are. Not only are both roles loaded on, but they're loaded on in a very confused way. The roles are not distinct. I think that's a very fundamental issue for the design of your whole regime.
In retrospect, I had very interesting conversations with Madam Ouimet. I talked to her about the importance of the other integrity agencies in the system, especially the Auditor General. Little did I know that the Auditor General was investigating her conduct at the time. It just brought home to me that the system as a whole does not seem to be well organized. That, then, obviously creates enormous problems for these particular roles.
The fourth thing is that I think the avenues under the act for achieving remedies for whistle-blowers who do suffer detrimental action are certainly not international best practice. They really fall short of international best practice in at least three ways.
One, it's not clear to me why you need to have the commissioner act as a gateway to people being able to secure their legal remedies, or their entitlements to legal remedies, from a tribunal or from whoever the independent umpire would be, and why you wouldn't enable people to just go straight to that umpire and test out their claims there, if necessary, and preserve the role of the commissioner as being more administrative but also more proactive in putting more effort into those cases that clearly are deserving, while not preventing people from being able to test their own claims. That's unclear to me. In other jurisdictions that simply doesn't occur.
The second problem in relation to the remedies is that there are so many restrictions on when the commissioner can act in the first place. The requirement under subsection 23(1), that the commissioner is not permitted to take an interest in cases that anybody else is already involved in, is a pretty retrograde provision, in my view. In other jurisdictions it can certainly be a discretion not to get involved if other agencies or remedial avenues are already involved, but there shouldn't be a blanket prohibition on that. The commissioner can then go wherever they need to in order to sort out whatever the problems are.
The third issue in relation to remedies is a very general problem. It's an international problem. Many of the adverse impacts suffered by whistle-blowers will not ever be the types of adverse impacts that can be tracked back to a deliberate reprisal. Many of them are the result of agency incompetence. Many of them are the result of agencies simply having not good procedures for protecting whistle-blowers, or not following procedures. Very often those mistakes, or the failure to deliver support, are not the result of active reprisals or active decisions of any kind. They're omissions that are negligent in retrospect. Really, the whole framing of reprisals as being the trigger for achieving remedies actually misses the point in possibly 90% or more of the cases where whistle-blowers suffer detriment.
Here in Australia, the most recent law reform that is now under way is framed quite differently. It's framed not only in terms of direct and deliberate reprisals but also in terms of where there is a failure on the part of somebody to fulfill a duty to protect and support, or to control others who are meant to protect and support, and then damage occurs to the whistle-blower, a liability will arise, and an entitlement to remedies and damages will arise. That's quite different from this focus on direct and deliberate reprisals.
Those are three things in relation to remedies.
The fifth and final overall point I want to make is that, from what I know of the situation there for the federal government in Canada, the commissioner's role is very, very reactive. This is a problem for agencies everywhere in the world that are charged with whistle-blower oversight and protection: many are simply reactive. If they're reactive, then you can't expect the systems to work.
The front-line responsibility for whistle-blower protection, in the lion's share of cases, will lie with CEOs, with agencies, and with what they do internally. The only way the system will work is if the Integrity Commissioner or the oversight agency has a very active role in making sure that those systems and procedures at the agency level are in place, that they're working, and that the discretions being applied by CEOs and their staff are actually fair and reasonable. That's where all the prevention efforts lie to actually make sure the system is working properly and that there can be confidence in it.
Without knowing all the details of the Integrity Commissioner's role, I would say that the Canadian system, even compared with our systems, which are more reactive than they should be, does seem to be very reactive, driven simply by complaints rather than by a proactive approach to implementing the scheme and making sure that it's properly embedded at the agency level and actually working.
Mr. Chairman, those are my five overall opinions about your legislation, from the other side of the world. I'm happy to help the committee however I can.
