Thank you, Mr. Chairman. It's a great pleasure to present to the committee, and a great honour as well. I'm more than happy to assist the committee in its deliberations around reform of Canadian whistle-blower protections. I'll talk to you briefly about how the Protected Disclosures Act in Ireland came about and about key features of the act and some of our observations around potential impacts of the legislation here in Ireland.
By way of background, I'm chief executive of Transparency International in Ireland. We have been working on whistle-blower protection for about 10 years now. We launched Ireland's first and only free phone helpline for whistle-blowers in 2011, and we have assisted around 900 people so far. We also assisted the Irish government in drafting the Protected Disclosures Act in 2014. We provide advice to the Council of Europe, the United Nations Office on Drugs and Crime, and other agencies, and we have been offering assistance to other governments in their deliberations around whistle-blower protection.
We started exploring this issue in some depth back in 2009, and we published an assessment of legislation in Ireland. Up until 2014 there were around 18 pieces of legislation on the statute books governing how individuals should report a concern and the kinds of protections they would be afforded were they to make a disclosure. We found that whistle-blowers were afforded varying degrees of protections, depending on where they worked and the type of wrongdoing they were reporting. One could report a breach of the Pensions Act or the Chemicals Act or the Communications Regulation Act, but up until 2013, if you worked in a bank you weren't afforded the opportunity to report or to report with the knowledge that if you did suffer reprisal, informal or formal, you would have any rights to seek redress.
It wasn't really until the collapse of the Irish banking sector in 2008 that the Irish government took the issue of whistle-blowing seriously. Transparency International had been campaigning for some time. In 2010 we published a report, which led to a degree of consensus across party lines on the need for stronger whistle-blower protection. We had been campaigning for a piece of legislation similar to that which has been on the statute books in the United Kingdom since 1999, which would afford whistle-blowers protection irrespective of the type of wrongdoing they were reporting or where they worked. We campaigned for what became the Protected Disclosures Act in 2014.
The act draws from best practices in the United Kingdom, New Zealand, South Africa, and elsewhere. It focuses on workplace whistle-blowing. It applies to all sectors of the economy. It protects anyone so long as they have a reason to believe what they are reporting is true. False disclosures are not protected, or shall I say, false disclosures in which the individual is found to have known they were false are not protected. Someone can avail themselves of the protections so long as they can show that they had a reason to believe what they were reporting was true, even if it transpires that the information they shared was misleading or false.
Past disclosures are also protected, so any disclosures of information related to wrongdoing made prior to 2014 are protected. One unique feature of this legislation is the fact that it was the first to remove the requirement to demonstrate good faith, so the motivation of a whistle-blower is irrelevant.
There is, furthermore, no public interest tests in the legislation. All one has to do is show that one had reason to believe that the type of wrongdoing that is categorized in the legislation was taking place or was likely to be taking place.
All workers are protected, with the exception of volunteers, which is something we would like to see addressed in a forthcoming review of the legislation here. Contractors, agency workers and trainees, and interns working in hospitals are protected. All one has to do is also show that the information one is sharing is relevant. Relevant information is defined clearly in the legislation, and it's related to a type of wrongdoing described in the law.
The information also has to be information that has come to the whistle-blower or the worker in connection with their employment. Again, so long as they have a reason to believe that the information is true, they are protected.
The type of wrongdoing covered is similar to the wrongdoing categorized in the Public Interest Disclosure Act in the United Kingdom. It includes offences; breaches of legal obligation; miscarriage of justice; health and safety issues; damage to the environment; unlawful or improper use of public body funds; oppression, discrimination, or gross negligence by a public body; and concealment of information in relation to any of the types of wrongdoing above.
Workers are protected from unfair dismissal and penalization. That might include bullying. It might include relocation, informal sanctions, ostracization at work. There is a burden placed on the employer to prevent a worker from being bullied or from suffering any harm or detriment arising from a protected disclosure.
Also, uniquely, the Irish legislation provides the right of tort, so an individual can seek redress through the courts where they believe they have suffered harm as a consequence of making a protected disclosure. In addition, an individual has a right to take action against anyone who causes them harm where a disclosure or a protected disclosure has been made by somebody else, such as a family member or a colleague, and they themselves suffer as a consequence of that disclosure. For example, they might be suspected of having made a protected disclosure, but although they were not the person who made the disclosure, they suffer nonetheless. Whistle-blowers are also granted civil and criminal immunity for making a protected disclosure, and their identity is protected from being released without just cause.
Also, the law provides for interim relief for whistle-blowers. Within 21 days of receiving notice that they might be dismissed and they believe their dismissal is a direct consequence of having made a protected disclosure, they can seek redress through the lower courts. The lower courts can prevent their employer from dismissing them and can instruct the employer to reinstate them and keep them on the payroll until such time as their case has been brought before the employment courts, the workplace rights commission.
Employers have an obligation not to dismiss people making protected disclosures, not to penalize or harm them or allow others to do so. Again, they have an obligation to protect the identity of whistle-blowers. They also cannot contract out of their obligations, so they cannot write guiding clauses into contracts or post-employment agreements into settlements. Public employers must have protections or procedures in place. Each public body has to have policy and procedures in place, and must also report to the relevant government departments on the number of cases brought to their attention and the actions taken.
In addition, a whistle-blower can report to their own employer; to the relevant minister, if they're working within the public body; or to a legal adviser. All they have to do in such cases is show they have a reason to believe wrongdoing is taking place. If they have confidence that their employer is taking or will take their concern seriously or they have reason to believe that the information they're disclosing is substantially true, there's substance to their allegations, they can report to the prescribed body, which is generally speaking a regulator responsible for a particular body.
If in the event that they don't have confidence in their employer or the prescribed body, they believe their concern might lead to reprisal, where they can show that they're not personally benefiting or profiting from the disclosure, and other circumstances or conditions are met for the concerns being raised, and it's believed to be reasonable in all circumstances, they can report to a journalist or a member of Parliament.