Evidence of meeting #76 for Government Operations and Estimates in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was australia.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

A.J. Brown  Professor, Griffith University, As an Individual

March 20th, 2017 / 5:45 p.m.

Conservative

The Chair Conservative Tom Lukiwski

Colleagues, it's 5:45 p.m., our designated meeting start time, so I think we'll get going.

I have one announcement, colleagues. As you all know we have votes tonight. The bells will start ringing at 6:45 p.m., which only gives us 15 minutes. I'd like to adjourn a little earlier than 6:45 p.m., just to ensure that everyone has enough time to get over to the House of Commons for votes. I'm thinking about 6:35 p.m. I'll play that by ear, but we'll give adequate time, so everyone can get out of here and either walk or catch a bus.

With that brief introduction to our colleagues, Professor Brown from Melbourne, Australia, welcome to our committee. I understand you have an opening statement, and with that, we will begin. You have probably been briefed by our officials, but after your opening statement, we'll have a series of questions from our committee members. This section will last about 50 minutes.

Professor, the floor is yours.

5:45 p.m.

Professor A.J. Brown Professor, Griffith University, As an Individual

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.

5:55 p.m.

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much, Professor Brown. I know that your testimony has given rise, probably, to many questions around this table.

We'll start, for seven minutes, with Mr. Peterson, please.

5:55 p.m.

Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Thank you, Mr. Chair.

Thank you, Professor Brown, for your insight and your input, and for taking the time, early in your day and late in our day, to be here. We appreciate your efforts in that regard.

I have a few questions. I just want to get into a little bit of your background and experience, and I have some questions about the Australian model. There's obviously a federal piece of legislation. Does every state and territory have one as well?

5:55 p.m.

Prof. A.J. Brown

Yes, every state and territory has one.

5:55 p.m.

Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Have you been involved in the legislative processes at the state and territorial levels as well, either through review or—

5:55 p.m.

Prof. A.J. Brown

Most of them to varying degrees [Technical difficulty—Editor] formation.

5:55 p.m.

Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Would you say there are vast differences among them, or are they all similar and you could classify them as similar pieces of legislation?

6 p.m.

Prof. A.J. Brown

There are a lot of differences among them. If the committee wants to look to the best piece of legislation in Australia, then it would actually be the Public Interest Disclosure Act 2012 of the Australian Capital Territory. Although that's our smallest jurisdiction, it's often the jurisdiction used by governments to innovate and to form a template for legislation for all the provinces, and indeed for the commonwealth as well, for the federal government. In fact, for a whole variety of reasons, it's the single most simple, straightforward, but also comprehensive whistle-blower protection legislation for the public sector in Australia. It also covers more than just the public sector, but it's the single best piece of legislation in Australia.

6 p.m.

Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

Okay, that's helpful, because I was going to ask next whether there was one you would commend to us as one of the best. That appears to be the answer to that question, so I appreciate that.

We as a committee have been reviewing this for a few sessions now, and we've heard a lot of testimony and a lot of opinions, suggestions, and actually, experiences. Some whistle-blowers have come and testified. The biggest surprise reaction I've seen so far has been your suggestion that this legislation should be replaced and we should go back to square one. We certainly appreciate the candour of that opinion.

If that were the case, should we base it, maybe, on the Australian Capital Territory legislation, as you said, or are there four or five components that you think are fundamental to having an effective piece of whistle-blower legislation?

6 p.m.

Prof. A.J. Brown

I think with any piece of legislation, it begins as a very good statement of legislative intent and very good objects. In all of the Australian legislation more or less, and certainly the ACT and the federal legislation, you will find very good, clear, and comprehensive objects. I think some of them have been repeated for the committee from the federal public interest disclosure act.

If all of those key objects are honoured in a clear and systematic way, which is intelligible for most whistle-blowers as well as for those administering the scheme, then it almost doesn't matter what the legislation looks like; it should work. That's one of the advantages of the ACT legislation. It's one of the great disadvantages of your legislation that it doesn't have very comprehensive objects, as well as all the tortuous complexity that it has.

I think it's good to be clear on the objects. The objects really need to be an overall object of supporting public integrity and accountability; facilitating disclosures at all levels through the system; ensuring that disclosures are properly dealt with, and investigated or responded to, at all levels of the system; and a clear object of protecting and supporting whistle-blowers.

I think if those are carried through properly in a simple and straightforward way by good draftspeople, then.... I'm not a big fan of copying other people's legislation. One of the beauties of the ACT legislation is that it happens to be well drafted by very competent draftspeople who went back to square one and designed a very good scheme.

I know you automatically look at the federal legislation, so you looked at our Public Interest Disclosure Act 2013. It's a very complex and pretty poorly drafted piece of legislation.

The committee should be aware that it was reviewed last year as part of the statutory review, similar to the one that you're performing now. There's a very comprehensive report in existence by a gentleman called Mr. Philip Moss, who was engaged by the government to conduct that review. He made specific recommendations for improving the act—many recommendations—but he also recommended that the government look at stripping the entire piece of legislation back to a simpler, more principle-based approach, like the best state or provincial legislation we have.

It's those sorts of assessments that make me come around to thinking you're in a situation where stripping it back to first principles is something you should be considering.

6 p.m.

Liberal

Kyle Peterson Liberal Newmarket—Aurora, ON

I appreciate that.

I have less than a minute left, so I want to briefly delve into some of the.... I think it's fair to say that you classified them, and many witnesses have classified them, as technical shortcomings, including the presence of the good faith threshold and the lack of ability to gather evidence during the investigation.

Do you see this as a problem? I know it's a technical problem in our legislation, but do you think it prevents us from meeting the objects of what the legislation should be? Are there ways to have those technical goals met without stripping it right down to square one, as you mentioned?

6:05 p.m.

Conservative

The Chair Conservative Tom Lukiwski

If you can, Professor, give a very brief answer, please.

6:05 p.m.

Prof. A.J. Brown

Certainly you can do better. I think you could muddle through many of those technical difficulties. Where there's a will, there's a way.

Good oversight agencies have done wonders with very poor legislation, if they really have the will and are of the mind to do so. That's why it's crucial.

6:05 p.m.

Conservative

The Chair Conservative Tom Lukiwski

Thank you very much.

Mr. McCauley, you have seven minutes, please.

6:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Good morning, Professor. Thanks for joining us today.

I appreciate your input. I almost wish we had heard from you first rather than all these other witnesses. It would have saved us some time. From almost every single witness we've spoken to, they have all said we need to have reverse onus for reprisals. However, we notice in the documentation we have that Australia and New Zealand do not actually afford that.

Is that something you would recommend, or is that something Australia has not gotten around to? Were there issues with it that you're aware of?

6:05 p.m.

Prof. A.J. Brown

It's a very good question.

The reason some jurisdictions in Australia do have a reverse onus.... Where the reverse onus appears, it usually appears in relation to the criminal offence of reprisal and proving that. Many of us don't focus on that because it's almost impossible to prove criminal reprisals in any circumstances anyway. Also, criminalized reprisals are a distraction from the real issue, which is achieving remedies for people who suffer adverse outcomes from all the things that are not deliberate and not criminal, but are detrimental actions, both acts and omissions, deliberate and undeliberate.

When it comes to the broader test of liability or if an entitlement to remedies is raised, generally speaking in Australia, the wording is very broad. If there was any detrimental action and there was a public interest disclosure involved, then the language is already very broad to say that the detrimental action is compensable, so that it doesn't have to deteriorate into the question of proving that there was any detriment or that the detriment was caused by intention to cause a reprisal.

That's one reason why it's been less of a focus here. The thresholds would be automatically more liberal, but that doesn't mean that it hasn't been a problem and there are some quite strong views that there needs to be a clearer reversal of that onus.

I guess the reason why I don't focus on it so much is that it really is a question that arises in relation to that criminal or disciplinary liability for reprisals. In my view, that's substantially a distraction from the main gain, which is making sure that civil remedies are available.

6:05 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

Yes. What we're hearing from our public service is that there's a genuine fear of coming forward. We actually had some witnesses appear before us and we've had documentation of their lives basically being ruined for doing the right thing in coming forward. When we've done surveys with our public service—and I'm going to be non-partisan here, it happened under my government and it's still continuing currently—well over 50% of our public servants state clearly that they're afraid to come forward, it's just not worth it, their lives will be ruined, their jobs will be gone. We've actually seen evidence of that, which is why I think we, all around the committee here, are very committed to having very clear protection in a reverse onus.

However, you're saying that wasn't as much of an issue or did I misunderstand?

6:05 p.m.

Prof. A.J. Brown

No. It's a question of how much a reverse onus will be effective in achieving that result. I'm not saying that it's not important, but it's just one part of the mix for an effective regime. Certainly, there need to be clear rules that if there's a disclosure involved and detrimental action is shown, then certainly the onus should shift onto the respondent or onto the agency to be able to demonstrate that the adverse action that was taken was not taken as a result of or in connection with the disclosure.

There's no problem with that principle and it should certainly help, so that principle can be put in place as part of evidentiary procedure, as well as being legislation. If that can be entrenched, that can be a good thing. However, in and of itself, it's not going to necessarily make sure that the remedial provisions are actually well-calibrated to deal with the problem because the problems are very often almost like a no-fault issue.

Most of the problems that end up causing whistle-blowers' careers to go into decline are very often not caused by any intention or deliberate omission in relation to their treatment. It's caused by a failure of support. It's caused by unmanaged stress and it's caused by simple errors in the way that people are handled and managed. Those cumulative impacts are the ones that, in most cases, then end up causing that sort of detriment. In those sorts of cases, the evidentiary questions are quite different and the fundamental question then becomes whether the process should be intended to hold individuals to account or whether it should just recognize the organization or the responsibility to compensate that person irrespective of individual fault.

I think all the evidence is now showing that the law needs to be calibrated to deal with that broader organizational responsibility, almost like workplace health and safety responsibility, rather than it being a question of hunting down the individual who supposedly set out to cause some kind of a reprisal.

6:10 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

I just have half a minute. What other countries would you recommend for us to benchmark against?

There's Australia, obviously, and we've heard about New Zealand and Ireland. Do you agree with that? Is there any one that we should look at?

6:10 p.m.

Prof. A.J. Brown

The problem is that almost every country is focusing on a different part of the problem or challenge more heavily than others. Bottom line, I wouldn't look to New Zealand. I wouldn't look to New Zealand, not through its legislation—

6:10 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

War is declared on New Zealand—

6:10 p.m.

Voices

Oh, oh!

6:10 p.m.

Prof. A.J. Brown

That's right. A cross-Tasman rivalry rules.

I can provide more information about why.

6:10 p.m.

Conservative

Kelly McCauley Conservative Edmonton West, AB

I appreciate that, because we're out of time.