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REVIEW OF:
A REPORT BY THE INDEPENDENT COMMISSION AGAINST CORRUPTION
Titled: "Monitoring the Impact of the NSW Protected Disclosures Act, 1994"
Subtitled: "Encouraging NSW Public Sector Employees to Report Corruption"
Dated: November 1997
With Respect To:
CLIENT-SATISFACTION WITH ICAC
By
RICHARD BLAKE, COMMITTEE MEMBER, NEW SOUTH WALES BRANCH, WHISTLEBLOWERS AUSTRALIA INC.
****

ABBREVIATIONS USED IN THIS REVIEW

ICAC: The Independent Commission Against Corruption
PDA: Protected Disclosures Act
WBA: Whistleblowers Australia Inc.
WB: Whistleblower
PS: Public Sector of New South Wales

PURPOSE

The purpose of this Review is:

(1) To discern any information that the Report may give about the opinions of people making Protected Disclosures to ICAC under the PDA about how satisfactory or otherwise ICAC's response was.

(2) Taking this information together with existing information, to make observations, to make findings, to raise issues with ICAC, the Government and the public, and to ask questions of ICAC.

Note: for the sake of flow of thought, these observations, findings, issues and questions are brought out at many places in the text; however, a full list is given at the end.

BACKGROUND
The General Situation in New South Wales

It is obvious to all of us, through anecdote and literature, that Australia has long had, and still has, a culture where "dobbing in your mates" is considered a disgusting thing to do. What is less obvious from the anecdotal and literary material is that "dobbing in" a person superior to you in a hierarchy, e.g. a superior officer in a place of employment, is considered by most people to be doubly disgusting - anathema, one might say. The reason there are so few records of this phenomenon in Australian literature may be, in fact, because it has been so rare; although there has been a growing number of recent cases in the media and scientific papers which show that it is now becoming somewhat less uncommon.

Two of the psychological reasons why people recoil from exposing malpractice by a superior officer, or from supporting a co-worker who does, are, fairly obviously: (1) fear of reprisal, and (2) the ethic of preserving hierarchical authority and thereby the stability of the organisation.

It is also fairly obvious that both these psychological constraints are deeply rooted in the human psyche, and also that they relate back, respectively, to preservation of self and to preservation of the tribe.

However, this cultural phenomenon is of huge concern when one reflects that virtually all the famous and significant exposures of malpractice from the inside in Australia in recent years, the ones that have caused great public outcry and necessitated the introduction of "Protected Disclosures" Acts and the formation of whistleblowers' groups, have involved "blowing the whistle" on superior officers.

The reason for this may be fairly obvious, but it is probably worthwhile reiterating it here. (1) If a malpractice is entirely below you in your hierarchy, and is not large-scale, you have the authority to eliminate it yourself, so there should be no problem. (2) If it is entirely below you in your hierarchy, and is large-scale, or if it is on the same level, you generally cannot; so, (except in special cases where you might go straight to an outside agency), you must enlist the help of a superior officer. It probably does sometimes happen in such cases that this person will help: however, in very many cases you will find that he/she will not. For, if both you and he/she are honest, it will have been difficult for the large-scale malpractice to have arisen in the first place, so you may find that he/she is also involved in, or at least conniving in, the malpractice. Even if this is not so, he/she may feel threatened by being perceived as a bad manager who would have to take some responsibility for the situation arising; and/or, if simply lacking integrity, may feel generally threatened by having a person of integrity in his/her charge. For whatever reason, if the superior does not help, you are then faced with the obligation, if you see it that way, of reporting him/her to a yet higher authority. (3) If a malpractice is above you in your hierarchy, you immediately have the relevant problem anyway.

WBA can attest that almost all of the WBs who come for assistance do so not because they have dobbed in their mates, but because they have been forced to challenge a superior officer in one of the above circumstances. Then, as one might say, all hell has broken loose. The culture has reacted. The whole world seems to have turned against them, even friends and relatives often being unsympathetic.

Why do some people blow the whistle while others remain silent? It is virtually never out of a desire to destabilise, because whistleblowers are very public-spirited. As far as reprisals are concerned, most do not realise how nasty these are going to be, and, in the case of the PS, how powerfully oppressive the system is; and the rest are prepared to suffer. Generally speaking, WBs are people who believe that, when the malpractice is serious enough, you just have to draw a line.

ICAC

The Independent Commission Against Corruption was set up in 1988 mainly for the purpose of investigating corruption in the PS.

The Act setting up ICAC defines "corruption" fairly widely and gives it wide powers. It also contains specifications for preserving confidentiality where appropriate in investigations and many other procedures to ensure fairness for all. Certainly, even on a close reading of the Act, the average person would feel optimistic that its introduction should surely have made the day of the victimised, unsuccessful WB (on corruption as defined) obsolete.

There are two parts of the Act which, although appropriate and necessary, can, if misused, thwart this objective. Clause 12 reads:

"In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns",

and Clause 20 (3) (a) reads:

["The Commission may, in considering whether or not to conduct...an investigation..., have regard to whether or not...] the subject-matter of the investigation is trivial..."

These two things, if taken together, offer considerable scope to ICAC staff for putting the interests of preserving the stability of public authorities above that of rooting out corruption, i.e. for "drawing the line" at a different level from that of the WB, or not drawing it at all.

Even aside from interpretations of the Act, if one accepts that the "thou shalt not dob in thy boss" ethic is as powerful in the community as we suggest, especially in large organisations like the PS, and given that ICAC is staffed by public servants, one has a natural fear that some, or even most, of them might not be free enough from it as to give adequate assistance, or even any assistance, to people coming to them with disclosures about a superior officer.

Whether this is so presumably depends largely on how well the staff are screened, trained and audited; and that, in turn, depends on the character of the screeners, trainers and auditors; and so on. We, the people doing this review, have not as yet had time to make enquiries about such matters.

PDA

The Protected Disclosures Act 1994, which came into effect on 1.3.95, has the object:

"..to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and serious and substantial waste in the public sector..".

The protection, which is against a fairly comprehensive list of detrimental actions, with considerable penalties, is given to the public servant WB when [our concise version]:

He/she has blown the whistle to (1) the appropriate external investigating authority, or (2) the principal officer of the public authority where the alleged wrongdoing is taking place, or (3) to the appropriate officer(s) in that public authority according to set procedures there for blowing the whistle,

(In respect of "corrupt conduct", the appropriate external investigating authority is specified as ICAC),

AND:

The party so advised (1) within six months: decides not to investigate; or after investigating decides on no further action, or (2) after six months: has given no decision on whether to investigate; or has commenced an investigation but not completed it,

AND:

The WB's disclosure is then to either a Member of Parliament or a journalist.

The Act is odd, and rather unsatisfactory, for the following main reasons:

(1) Most of the detrimental actions protected against are already illegal under several other Acts, as well as being a gross denial of natural justice and a contravention of the Universal Declaration of Human Rights. One could say that there is no harm in reinforcing these; but one might also fear that, from ignorance, some public servants might interpret the Act as giving them the right to carry out some of the detrimental

actions against WBs who attempt to make protected disclosures but fail to totally fulfil all the conditions.

(2) Even more so, the allowance under special circumstances to refer a disclosure to a Member of Parliament seems rather superfluous: probably 99.99% of Australians would assert that, in this democracy, any citizen can take any matter of concern to any such elected representative at any time. It is quite alarming to have to infer that the Government of N.S.W. and the PS can actually envisage a situation where they would punish a public servant for referring a matter of public interest to a N.S.W. Member of Parliament.

(3) The State of N.S.W. will not prosecute public servants who illegally carry out the detrimental actions: WBA has been advised by the Attorney General that it is the WBs themselves who have to prosecute. This is a ridiculously unfair situation. In a typical case, the WB, after a mentally wearying struggle to expose the corruption and fight off the reprisals, and an often financially debilitating struggle to retain his/her job and/or get compensation, is highly unlikely to be capable of doing this. Why will not the State do it? It seems that Governments are not really sincere in discouraging the repression of whistleblowers.

(4) The Act does not allow for degrees of urgency in disclosures. In cases where members of the public are being severely abused by the PS, most citizens would surely agree that they would like to be warned as soon as possible. In such cases, taking the matter to a journalist straight away should be allowed under the Act. Instead, it would have the WB wait possibly for months.

WBA

Whistleblowers Australia Inc., which grew up out of another group in the early nineties and was incorporated in NSW in 1994, has since had a steady stream of people coming to its NSW group, some joining, some not. Membership in this State has increased in number from a handful to about 150 at present, of whom about 95% are PS employees. Of these, approximately 100 have related that they blew the whistle on corruption (as they saw it) in their place of work to ICAC. However, approximately 90 of this sub-group also related that they experienced considerable disappointment, some very great, with ICAC's response. Some of the reasons were: (1) Discourtesy, (2) Failure to Investigate, (3) Not taking the WB into their confidence, (4) Simply referring the matter to the people they were blowing the whistle on, (5) Declining to investigate unless the WB allowed his/her name to be revealed, (6) General lack of competence.

To ICAC's credit, it has been apparent that they do investigate some things, although the number is only 1% of matters referred to them. They have also made it very clear to the public that they are continuously short of funds relative to the volume of disclosures they get. The Act does not allow them to decline an investigation on these grounds, so, presumably, valid disclosures which could not be immediately investigated should have all been filed rather then declined. However, the number of our anecdotes where the reason for dissatisfaction was a refusal rather then a long-term delay has still been disturbing.

An even more disturbing phenomenon has been the absence (apart from two unusual cases) of anecdotal evidence experienced by us to the effect that ICAC does help WBs (on superior officers) at all. For instance, no-one has come to the group saying, "ICAC helped a colleague of mine who did what I am doing, but they won't help me". Neither has anyone said, "ICAC helped me in a previous whistleblowing situation but they won't help me now". Moreover, to the best of the knowledge of the writers of this review, no member has ever said that they have heard in their private life of any PS whistleblower being helped by ICAC. A reasonable person should surely be able to assume that if ICAC were generally helping such WBs, one of us would have heard a story, if not from a fellow-whistleblower, then from a relative, or neighbour etc., of it happening at some time?

Given all of the above, members became forced some time ago to consider the possibility that it may even be a general rule within ICAC that it does not help people who blow the whistle on superior officers. As a result, it has become the practice of many members to advise each other not to have anything to do with ICAC.

However, since all this information was mainly anecdotal, not officially recorded, we decided in 1997 to conduct an official survey of our members (and others associated with us who had not officially joined) to evaluate client-satisfaction with ICAC, restricting it, as ICAC has done theirs, to people who made their disclosures under the PDA. Of 31 who returned our questionnaire, 30 said they were dissatisfied with ICAC's response, some greatly. The other one said he/she was helped, but only upon making persistent demands after first been fobbed off.

During 1996 and 1997 we communicated our concerns about the matter to the media, to the Parliamentary Joint Committee on ICAC, (including at meetings of that Committee) and to ICAC itself.

In this context, we urged ICAC for a long time to do its own client-satisfaction survey. We were therefore very interested when they advised in the middle of 1996 that they were going to do this, as part of an investigation into the impact of the PDA.

Methodology of the Commission's Survey

We were advised early in the piece that the survey would be in the form of a spoken questionnaire by telephone of a randomly selected group of twenty people who had made PDA disclosures to ICAC.

WBA advised its opinion that this sample was too small to give a meaningful result.

The sample was later increased to thirty, but ICAC decided in any event to make the Report "qualitative" rather then "quantitative".

This was rather disappointing. Assuming that with "qualitative" data, you simply quote some anecdotes and opinions, no-one can tell what importance to ascribe to each one, because it is not known how often the types of situations giving rise to such an anecdote or opinion are occurring. Its value is therefore extremely limited. What's more, the impartial observer can never be sure that the selection has not been biased in some way, purposely or otherwise, by the person reporting them.

One of our members who was surveyed by ICAC noted the questions he/she was asked. There were about 40, and the ones which relate most directly to client- satisfaction with ICAC were:

* In deciding to come to the ICAC, did you have concerns about doing that?

* What did you actually expect the ICAC would do in response to your report?

* How long did it actually take the ICAC to settle the matter?

* When you made the report, how long did you expect that it was going to take them to settle it?

* Did the ICAC provide clear guidelines as to what they could or could not do in response to your report?

* Were you satisfied with how the ICAC actually handled your report?

...why?...what occurred?...in terms of the contact you had with them and the way that they dealt with your report and so forth in terms of taking the report?

We were pleased to note that these questions gave generous scope to respondents to express dissatisfaction with ICAC, with detail, if they wished.

THE REPORT

General

The Report is divided into a part called "Background" and four sub-reports called "Phase1", "Phase 2", "Phase 3", and "Phase 4" covering the four Phases of the investigation, each sub-titled with a concise description of the work of the Phase.

None of "Background", or Phases 1 to 3 contain material about client-satisfaction with ICAC.

Nowhere in the entire Report is there any list of the questions asked in the survey, or even a sample thereof. This is of concern.

Sub-report: "Phase 4"

General

Sub-report Phase 4 is subtitled: "INTERVIEWS WITH 30 PUBLIC SECTOR EMPLOYEES WHO HAVE MADE PROTECTED DISCLOSURES".

It contains a part called "Summary"; then four Sections; and lastly a part called, "Discussion". The four Sections are titled respectively: (1) "The Impact of the Protected Disclosures Act", (2) "The Experience of Reporting Corruption Within Organisations", (3) "Advice to Others", and (4) "Expectations and Experience of the ICAC."

Section 4 includes significant material directly about client-satisfaction with ICAC, and the rest of the sub-report includes material which relates to it indirectly.

"Summary": "Rationale and Aims": "Aim" (P.84)

This lists three "main areas" explored in the interview. The third of these is the one which appears to cover, to some extent, client-satisfaction. It is given as:

"3. The experiences of respondents in reporting to the ICAC. This included an exploration of:

- their understanding of the role of the ICAC;

- their expectations of the ICAC;

- ways the ICAC can help improve the experiences of complainants."

On reading this, a reasonable person must note with some apprehension that the three items quoted cover considerably less ground than the questions recorded and quoted above by our phoned member. The first two items only relate to experiences

where the customer/discloser can be seen immediately to be (in ICAC's opinion at least) in the wrong, i.e. because he/she has misunderstood ICAC's role or had wrong expectations of it. And the third is a matter which deals mainly with the future and only obliquely with the past. The three items together therefore exclude experiences of a type where, (if any did happen) the discloser might have said, e.g. "ICAC was rude", or even "I sent hard evidence of terrible corruption, but ICAC did not seem interested". Although the heading says that the area only "includes" the three given items, so that inclusion of such direct harsh criticisms later in the Report are not ruled out, none actually do occur later, and it is not clear from the Report whether the person writing the Report did, in fact, have a brief to include same if any did occur.

A reasonable person might therefore have a suspicion that ICAC may have reduced the range of the findings it was seeking after it started making findings.

"Summary": "Rationale and Aims": "Sampling" (P.85)

Oddly, this sub-sub-part does not include information about the actual sampling. (This is described in "Considerations" - see below).

It advises how, after excluding people who made anonymous disclosures and people who had only given work addresses, the 140 remaining people who made Protected Disclosures under the Act between 1.3.95 and 31.5.96 were invited to participate. Of these, 82 accepted, nine had moved address and could not be traced, and 49 declined to reply.

This procedure was consistent with what we were given to expect and we have no problem with it.

It would have helped to clarify here what "people who made Protected Disclosures" means. In the prologue of "Summary" (P.81), it says, "Respondents revealed that they possessed limited or no knowledge of the Protected Disclosures Act." So we know that it was not a condition of eligibility for the survey that their disclosure had been set out by them in terms of the Act (which is reasonable). However, we have no means of knowing whether disclosers were included whose disclosures turned out to be, or were adjudged by ICAC at least to be, not about corruption, but about, say, waste or maladministration. We cannot automatically assume that they would not be included, as much of the data collected would still have some, though less, relevance.

"Summary": "Rationale and Aims": "The Interview" (P.85)

This lists nine matters under the heading: "The issues which were explored in the interviews included:".

None of these contain any reference to client-satisfaction at all. Again, this is very disconcerting.

"Summary": "Rationale and Aims": "Considerations" (P.85)

This states that a sample of 30 was selected from the 82 volunteering. It also says that, "The data which have been collected are qualitative", and, "The ability to generalise from the findings is limited by the fact that the 49 non-volunteers may constitute a very different group."

The limitations of "qualitative" data, as we see them, are given earlier in this review.

We agree that, "The ability to generalise from the findings is limited by the fact that the 49 non-volunteers may constitute a very different group." Also remembering that not all of the 82 who did volunteer were interviewed, but only 30, we realise that generalised findings would be generally inappropriate. However, one must say that, if all 30, or at least, say, 25 or over, had been very consistent with each other in their answers on any specific matter, surely it would have been significant? WBA is very interested in knowing whether or not this happened.

Section 1: The Impact of the Protected Disclosures Act

In sub-section 1.4 (Did the Act Meet Expectations?) (P.93), there is a respondent's anecdote saying:

"Confidentiality was adhered to by the ICAC..."

This is laudable.

There are a few other anecdotes referring to ICAC, but it is impossible to tell from them whether the respondent was actually pleased with ICAC or not.

The rest of the anecdotes relate to the impact of the Act (mostly negative) without mentioning ICAC, and, although many of them could be taken as meaning that ICAC was to be included in the satisfactory or unsatisfactory assessment, it is impossible to tell from any of them whether this is so.

No conclusions of any value with regard to client-satisfaction can be drawn from this Section.

Section 2: The Experience of Reporting Corruption within Organisations

In sub-sub-section 2.3.1 (The Impact Upon Their Job) (P.100), there is a respondent's anecdote saying:

"The second report to the ICAC was to report the harassment. The harassment immediately stopped when that report was made.".

This is laudable.

This is the only anecdote we can find in this Section which gives an assessment of ICAC's performance.

No conclusions of any value with regard to client-satisfaction can be drawn from this Section.

Section 3: Advice to Others

There are five respondents' statements here which relate, indirectly, to satisfaction with ICAC:

"They should feel free to go direct to the ICAC." (P.108).

"I would encourage them and tell them to ring the ICAC and discuss it." (P.108).

"You must do the right thing and go to ICAC but complain to the source first." (P.109).

"Keep your mouth shut. Don't bother with the ICAC. Go straight to the newspapers because that's what is going to happen anyway." (P.110).

Definitely yes, [I would do it over again], but I wouldn't go internally I would go straight to the ICAC." (Would They Do It Over Again) (P.110).

The first, second, third and fifth of these statements certainly imply satisfaction with ICAC, and the fourth could imply dissatisfaction, but it is difficult to draw conclusions in this respect about any of them because none of them say what actually happened.

Again, no conclusions of any value with regard to client-satisfaction can be drawn from this Section.

Section 4: Expectations and Experience of the ICAC

Sub-section 4.3: Expectations of the ICAC (prologue) (P. 115)

This says: "Major misconceptions about the ICAC were that the ICAC:

* investigates all reports it receives;

* is a grievance handling body;

* involves complainants [disclosers] in the investigation process;

* arrests and charges people."

* "investigates all reports it receives". We accept that this misconception is unjustified, although one would think that ICAC, if it wanted to be as helpful as possible, would advise each declined discloser of the reason for refusal. Not doing so

is bound to cause some dissatisfaction, and in many, possibly most, cases will cause suspicion of ICAC as well as disillusionment. In our experience, this happens.

* "is a grievance handling body". We do not know whether to agree that this is a misconception, because we do not know what exactly is meant by "grievance". Certainly, complainants must be made to realise that only complaints which are valid in terms of the ICAC Act can be investigated. We think it is possible ICAC is using here a current usage of "grievance" limiting it to a grievance about one's own employment situation, and, if the Report therefore means here that they should decline to investigate purely routine-type industrial matters, we agree. However, we point out that, in relation to employment situations, there are a considerable number of malpractices that can occur which do fall under the meaning of "corruption" in Clause 8 (2) of the Act, i.e.: "oppression", "extortion", "imposition", "bribery", "blackmail", "perverting the course of justice", and "homicide or violence". We would like to be assured that ICAC has not been declining to investigate complaints of such actions when they occur in relation to employment situations on the grounds that they are only "industrial".

* "involves complainants [disclosers] in the investigation process". We do not accept that this is an unreasonable misconception. In fact, we are shocked and exasperated by this item. OF COURSE disclosers expect, and have a right to expect, that they will be involved in the investigation, unless they specifically ask to be left out of it. If you go down to your local Police Station to report a burglary, do you think the Police will say after you have made your statement, "We won't need you again; don't bother to leave your phone number?" Of course they won't! Are the Police going to spurn the assistance of someone who not only knows more about the crime than anyone else except the criminals, but also is obviously very willing to help? The Police could obviously be expected not only to ask you questions on the spot (if they have time) to fill in any gaps there might be in your information, but also to make very sure they know how to contact you, so that, as they work on the case and build it up, you can fill in more gaps!

To further state what should be obvious: when an informant (or discloser, or complainant etc.) first gives information to any investigating authority, he/she, in 99% of cases, is not going to try right at the beginning to give every single jot and tittle of the evidence he/she can possibly think of which might be used to establish the guilt of all possible people involved for all possible offences involved. The main reasons for not doing this are: (1) the risk of wastage of time by both informant and authority because some of the detail may turn out to be irrelevant, (2) it is reasonable to assume that the authority will pick up a lot of information during the investigation anyway which they do not need immediately, (3) if the submission is too long, it may simply be too difficult for the authority to study and make a judgement on in reasonable time, (4) as argued above, the informant has a reasonable expectation that, if there are any small gaps in initial evidence in an otherwise a viable case, the authority will contact him/her. Informants generally are therefore bound to expect to be contacted again!

Further, even if the informant did try to give every jot and tittle at the beginning, we must accept that he/she is human, and could make mistakes of omission.

Disclosers and the general public, therefore, obviously should have an expectation that all investigating authorities, including ICAC, should accept that most parcels of evidence initially submitted by informants will not only leave out at least some detail, but may not be, and should not have to be, absolutely watertight. The public should therefore also have an expectation that such authorities will act accordingly at this time, i.e. by communicating with the informant in order to fill in any gaps and make clarifications in otherwise valid cases so that they may, if possible, approve and start an investigation.

Now, where the Report says (above) that ICAC does not "involve complainants in the investigation process", it is not in fact clear whether this means they are excluded only after the investigation has started or whether it also means that these "initial gaps and clarifications" communications do not happen either. So, one would naturally have hoped on reading this that at least these initial-type communications might occur. However, later in the Report (Section 4) there are anecdotes which show that, at least in some cases, and therefore presumably in all, even they are also ruled out. (Our anecdotes also confirm this).

We must reiterate that we are both shocked and exasperated by learning that ICAC has a practice of leaving disclosers out of investigations. There are so many ways that the discloser can be of help. Take, for instance, a case where the discloser has submitted to ICAC copies of file documents proving fraud, having found that the management of his/her authority is either guilty of the fraud or wishes to connive at it. ICAC wants to find more file documents, going back in time, to substantiate the present ones received and to possibly discover further related crimes. How are they going to locate them? How will they know which filing cabinet to look in? Are they going to ask management? Management is not likely to help, are they? Are they going to ask the management's subordinates? The subordinates are likely to have a fear of the management (as well as other negative motivations), so are also a bad bet. It is essential for ICAC to get directions from the discloser. This can, of course, given some planning, be done in confidence.

We would add that there is nothing in the Act to prevent ICAC from using complainants in investigations.

* "arrests and charges people". We agree that this misconception is unjustified.

Section 4: Expectations and Experience of the ICAC

Sub-sub-section 4.3.1: Investigations (P.115)

Taking the prologue sentence by sentence:

"The majority of respondents expected an investigation would result from their report to the ICAC."

Given that the Act appears to compel ICAC to investigate all valid complaints, this is not surprising; in fact, it is surprising that all of them did not expect this.

"There was also an expectation among some respondents that they would play an active role in the ICAC's handling of the matter."

See previous examination of this issue.

"This raises the issue of the ownership of the report"

We have had no experience of this issue being raised. We would be interested to know if it presents a recurring problem.

"Respondents were very much of the impression that the ICAC is a vehicle for them to have their matter dealt with, a complaint handling and resolution body."

According to our reading of the Act, if the respondent's matter, i.e. their complaint, is a valid one in terms of the Act, this is precisely what ICAC is, and the very reason it was set up. We consider this impression is quite justified.

"This is in sharp contrast to the actual role of the ICAC which is to gather information about corruption whch may result in an investigation or may contribute to ICAC corruption prevention and education strategies without becoming the subject of a full investigation."

We are greatly concerned by this statement, as, on several points, it appears to be in conflict with the Act or at least in conflict with what the public and the disclosers have a reasonable right to expect, as follows:

(1) The most fundamental purpose of ICAC, according to the spirit of the Act and the obvious expectation of the people, is to discover corruption and to see to it that the relevant corrupt people are brought to justice.

(2) It appears to us that, according to the Act, ICAC must investigate all valid complaints.

(3) According to the Act a "complaint" is a specific matter which has to be dealt with in terms of the Act. In the context of a "complaint" the Act refers only to "investigating" and does not mention "gathering information". It appears that ICAC staff have therefore no authority under the Act to "gather information", in any general way pursuant to the receipt of a complaint.

(4) Clause 53 of the Act authorises ICAC to refer "a matter" to any other entity "before or after investigating..", but the clear implication is that there will necessarily be an investigation, otherwise it would have been worded "before deciding to investigate". This means that if the "matter" is a "complaint" the Operations Review

Committee have already approved it as valid. If ICAC staff are using Clause 53 to invite organisations and people generally to give information before the complaint has been referred to the Committee, then it appears that they are infringing the Act. Given the above statement in the report, a reasonable person might be concerned that ICAC staff are in fact doing this. Our practical concern in this regard is that it gives corrupt elements in the world at large an opportunity to react to the suspicion placed upon them not only by persecuting the complainant but also by telling lies to ICAC about the complaint and about the complainant. A reasonable person might fear, therefore, that ICAC staff may then respond by rejecting the complaint as invalid without referring it to the Operations Review Committee, or by referring it to the Operations Review Committee with a negative recommendation. However, if it was reasonably certain that an investigation was going to take place, the corrupt elements might be discouraged from reacting in this way.

(Adjunct to 3 and 4) Notwithstanding these considerations, it is our opinion that preliminary communications with the discloser (see above) for "gaps" and "clarifications" should not be considered part of an official investigation. Such communications, as in any sphere of activity, will obviously be a preliminary necessity in many cases. E.g., sometimes the discloser's English may not be perfect. ICAC staff have a responsibilty to present each complaint to the Operations Review Committee in a reasonably coherent and cogent form, so that the Committee can then make a good decision as to whether there will be an investigation.

(5) Even if, for some reason, our above reading of the Act concerning the relationship between complaints and investigations could not be legally maintained, we nevertheless believe that the use of complaints for any purpose other than for official investigations except with the express approval of the complainant is not a fair dealing with the complainant, and that the Act or the Regulation should, if necessary, be changed accordingly. Apart from the value of fair dealing for its own sake, it should be remembered that not dealing fairly with complainants will result in a loss of complainants.

The rest of this sub-sub-section consists of five anecdotes illustrating the expectation of disclosers that there would be an investigation. We note that, in respect of the first three, one can infer that there was no investigation, to the dissatisfaction of the respondent. The fourth says the matter was referred back to the organisation, with uncertain results, and the fifth says that ICAC did investigate, with a completely good result. This mixed result, taken in total, seems to substantiate our concerns in the previous several paragraphs.

Section 4: Expectations and Experience of the ICAC

Sub-sub-section 4.3.2: Participation in Investigations (P.116)

This sub-sub-section gives three anecdotes illustrating the expectation of disclosers that they would be involved in the investigation. We commend ICAC for bringing them to light and we hope ICAC takes note of them and reconsiders its practices accordingly.

It also has a closing paragraph which reads:

"The majority of respondents saw it as their role to obtain sufficient evidence and a number said they would not have made the report if they had not thought they had enough evidence. A considerable amount of effort had, therefore, gone into preparing to make their report to the ICAC. It is not surprising, then, that respondents felt they had a vested interest in being part of an investigation."

We are glad that ICAC understands this. However (see above), it is not just from the point of view of being sensitive to the disclosers' feelings, but as a practical, and, at times, essential strategy, that we stress the importance of bringing the discloser into the investigation.

Section 4: Expectations and Experience of the ICAC

Sub-sub-section 4.3.3: Handing the Matter to the Relevant Organisation (P.116)

Taking the prologue sentence by sentence:

"Very few respondents had any understanding that their matter may not fit under the definition of corruption according to the ICAC Act and may be more appropriately handled by another organisation.".

We certainly agree this is of great concern, because it means a lot of valuable time is wasted, while the malpractices may be continuing. We applaud ICAC's efforts, in this respect, to make people better informed, although there is still a long way to go. We are also concerned because it makes it unclear (see also earlier in this review, "Rationale and Aims": "Sampling") whether respondents whose complaints did not fall under the definition of "corruption" were included in the final sample of 30. If they were, it must have reduced the final effective sample of actual "corruption" complaints left among the 30 to a very small number indeed.

"Additionally, very few were aware that the ICAC may hand their matter back to their organisation to address (after seeking the consent of

complainants to use their name)."

In this context it is of note to observe that nowhere in the Report, either in the survey or the analysis, is there any mention of ICAC's authority, if they chose to exercise it, to warn Public Servants being investigated that victimising WBs is, in terms of the PDA (and other Acts in some cases) an offence. Neither is mentioned the option of accordingly reassuring the WBs that ICAC can, or will, do this. As we have said earlier in this Review, the potential for victimsers to actually be punished under the PDA is, in fact, very limited, and it could even be that ICAC staff know this and accordingly have decided that the aforesaid warnings and reassurances are of no value. Our anecdotes certainly show that they do not customarily give the reassurances to WBs in initial communications, so it seems doubtful that they

customarily give the warnings either. However, one might have expected that this matter would have been addressed in some way in the Report, because the average member of the public, at least, would naturally think that a system of warnings and assurances, as above, would probably be extremely helpful and would make the WB happier about having his/her name revealed and be an encouragement to WBs generally.

In any event, we believe that referrals back to the organisation, are, except in rare circumstances, absurd and unfair both to the discloser and the public. Our reasons are:

(1) If such referral is made without the express approval of the discloser, it is manifestly grievously unfair to him/her.

(2) Even if it is done with the express approval of the discloser, it may, unless the upper management of his organisation has got a good track record, still put him/her in danger, and so be unfair to him/her.

(3) Even if the discloser's name is withheld, this will rarely make any difference, because in most cases he/she is the only person in the organisation speaking out, and everyone who has an interest in victimising him/her will know who has caused ICAC's referral. Admittedly, this could be said of any ICAC involvement, but if ICAC came in to investigate without the warning that a referral gives, the corrupt elements would have much less opportunity, if any, to start reprisals.

(4) If the discloser has already referred the matter "to the top" of the organisation, e.g. the Head of Department or Minister, and they have apparently not dealt with the matter properly, they, and all the rest of the organisation, should definitely be seen as under suspicion, and needing to be investigated rather than having the matter referred to them.

(5) If the discloser has not already referred the matter "to the top" of the organisation, and ICAC does not know of any bad track record there, one could reasonably expect ICAC to enquire of him/her why not. If there is a good reason, which could only be that he/she considers "the top" untrustworthy, then the same conditions apply as in the previous paragraph: ICAC have no justification in trusting them either. However, if there is no apparent reason, ICAC could perhaps reasonably suggest that, in order to be fair, he/she first so refer the matter; and if he/she declines, ICAC could possibly go ahead and do so. But, then again, everyone should realise that all problems, especially corruption, always reflect badly to some extent on all people in the hierarchy above the place where they are happening, because of the tradition that they must be held partly responsible for them, and so they all have a strong vested interest in covering them up, even if not directly involved. Any referral to any officer in a management position, including those at "the top", in an organisation where there is suspected corruption, should therefore be done with great circumspection.

(6) We are sure that most reasonable people would say that the practice is, in any event, generally undesirable, and would be happy if it were discontinued.

The remainder of this sub-sub-section consists of (1) three anecdotes showing respondents' great concern about the lack of trustworthiness of their organisations, the first two of which also express great disappointment at ICAC's willingness to trust those organisations, and (2) three further anecdotes advocating a tougher approach by ICAC with organisations.

These anecdotes strongly corroborate our opinions as expressed above. We commend ICAC for bringing them to light and we hope ICAC takes note of them and reconsiders its practices accordingly.

Section 4: Expectations and Experience of the ICAC

Sub-sub-section 4.3.4: Improving the Process (P.117)

This sub-sub-section contains ten suggestions made by respondents. Eight are about being better informed, which is reasonable. The other two reiterate points made by disclosers, and supported by us, in sub-sub-sections 4.3.2 and 4.3.3.

SUMMARY OF OBSERVATIONS, FINDINGS, ISSUES AND QUESTIONS

Abbreviations used in this section:

R Reference in the Report OR from earlier items in this section

W Whistleblowers Australia's anecdotal information

O Observation

F Finding

I Issue recommended for the Government, the people and ICAC to consider

Q Question asked by WBA of ICAC

Item 1

R The whole Report.

O Nowhere is there any list of the actual questions asked in the phone survey of PDA disclosers, or even a sample thereof.

Q Why is this so?

Item 2

R "Summary": "Rationale and Aims": "Aim" (P.84): three "main areas" explored in the interview.

O The three "main areas" cover considerably less ground than the questions recorded and quoted above by our phoned member and exclude responses of a type where the discloser might have been directly critical of ICAC's performance; and it is not clear from the Report whether the person writing the Report did, in fact, have a brief to include same if any did occur.

Q (a) Were there any such responses?

Q (b) Did the person writing the Report have a brief to include same if any did occur?

Item 3

R "Summary": "Rationale and Aims": "Sampling" (P.85).

O This does not clarify whether the 30 "people who made Protected Disclosures" includes people whose disclosures turned out to be, or were adjudged by ICAC at least to be, not about corruption, but about, say, waste or maladministration.

Q (a) Were such people included?

Q (b) If so, how many were there?

Item 4

R "Summary": "Rationale and Aims": "The Interview" (P.85): nine matters included in the interview.

O None of the nine matters contain any reference to client-satisfaction at all, whereas the questions recorded by our phoned member do have considerable reference to it.

Q Why is this so?

Item 5

R References and Observations (1), (2) and (4) above.

F A reasonable person might suspect that ICAC reduced the range of its findings after it started making findings.

Q Did ICAC do this?

Item 6

R "Summary": "Rationale and Aims": "Considerations" (P.85): "....The data

which have been collected are qualitative....The 30 respondents were selected at random from a group of 80....The ability to generalise from the findings is limited by the fact that the 49 non-volunteers may constitute a very different group.".

I If, on any specific matter, all or most of the sample of 30 had been very consistent with each other in their answers, would this not have been significant, and appropriate to report on?

Q Did such a thing happen?

Item 7

R Sub-section 4.3: Expectations of the ICAC (prologue) (P. 115): "....Major misconceptions about the ICAC were that the ICAC....investigates all reports it receives".

W ICAC has a practice of not advising complainants their reasons for refusing to investigate (although there is nothing in the Act that prevents them from doing this).

I Would it not be very helpful, as well as fair and courteous, if they did give their reasons?

Q Assuming our information is correct, will ICAC consider changing its practice to one of giving its reasons?

Item 8

R Sub-section 4.3: Expectations of the ICAC (prologue) (P. 115): "....Major misconceptions about the ICAC were that the ICAC....is a grievance handling body".

Q (a) What does ICAC mean by "grievance" here?

Q (b) Is ICAC using here a current usage of "grievance" limiting it to a grievance about one's own employment situation?

Q (c) Has ICAC been declining to investigate complaints of malpractices which fall under the meaning of "corruption" in Clause 8 (2) of the ICAC Act on the grounds that they are only "grievances", or only "industrial"?

Item 9

R (a) Sub-section 4.3: Expectations of the ICAC (prologue) (P. 115): "....Major misconceptions about the ICAC were that the ICAC....involves complainants [disclosers] in the investigation process".

R (b) One anecdote in sub-section 4.3.1 and three in sub-section 4.3.2 to the effect that the complainant expected to be involved in the investigation.

I Given that nothing in the ICAC Act precludes involving complainants in investigations, is it not absurd to spurn the assistance of someone who not only knows more about the corruption (if it is taking place) than anyone else except the perpetrators, but also is obviously very willing to help?

Q Will ICAC consider this matter and consider commencing to use complainants in investigations?

Item 10

R Sub-sub-section 4.3.1: Investigations (P.115): reference to "the issue of the ownership of the report".

Q Has this been a frequent issue?

Item 11

R Sub-sub-section 4.3.1: Investigations (P.115): ....the actual role of the ICAC which is to gather information about corruption whch may result in an investigation or may contribute to ICAC corruption prevention and education strategies without becoming the subject of a full investigation.".

I (a) Is not the most fundamental purpose of ICAC, according to the spirit of the ICAC Act and the obvious expectation of the people, to discover corruption and to see to it that the relevant corrupt people are brought to justice?

I (b) According to the ICAC Act, must not ICAC investigate all valid complaints?

I (c) According to the ICAC Act, can complaints be used for any purpose other than for official investigations?

I (d) Does not the use of a complaint for any purpose other than for an official investigation except with the express approval of the complainant constitute an unfair dealing with the complainant?

Q (a) What does ICAC mean by "gathering information" here?

Q (b) How does "gathering information" differ from "investigating"?

Q (c) Is "gathering information" in connection with complaints authorised under the ICAC Act?

Q (d) Are ICAC staff using Clause 53 of the ICAC Act to invite organisations and people to give information in connection with a complaint before the complaint has been referred to the Operations Review Committee?

Q (e) If so, is this a correct practice?

Q (f) Does ICAC use complaints for any purpose other than for official investigations without the express approval of the complainant?

Q (g) If so, how can this be justified?

Item 12

R Section 4: Expectations and Experience of the ICAC: Sub-sub-section 4.3.3: Handing the Matter to the Relevant Organisation (P.116): "....Additionally, very few were aware that the ICAC may hand their matter back to their organisation to address (after seeking the consent of complainants to use their name)."

I (a) Would it not be helpful if ICAC, when doing this, had a practice of warning Public Servants being investigated that victimising WBs is an offence and of accordingly reassuring the WBs that ICAC will issue this warning?

I (b) If such handing-back is made without the express approval of the discloser, is it not grievously unfair to him/her?

I (c) Even if it is done with the express approval of the discloser, may it not, unless the upper management of his organisation has got a good track record, still put him/her in danger, and so still be unfair?

I (d) Even if the discloser's name is withheld, will not this practice still put the WB in unreasonable danger, in comparison with an unannounced investigation, when he/she is the only person in the organisation speaking out?

I (e) If the discloser has already referred the matter "to the top" of the organisation, e.g. the Head of Department or Minister, and they have apparently not dealt with the matter properly, should not they, and all the rest of the organisation, be seen as under suspicion and needing to be investigated, rather than having the matter handed back to them?

I (f) Should not any referral of a corruption complaint to any officer in any management position, including "the top", be done with great circumspection because of the temptation, for various self-interest reasons, for such officers to cover it up?

I (g) Should not the practice of handing back a complaint to the organisation where the corruption is alleged be discontinued?

Q (a) Does ICAC have a practice of warning Public Servants being investigated that victimising WBs is an offence and of accordingly reassuring the WBs that ICAC will issue this warning?

Q (b) If not, would it consider adopting this practice?

Q (c) Does ICAC ever hand back a matter to the WB's organisation other than in the context of an investigation approved by the Operations Review Committee?

Q (d) If so, how can this be justified?

Item 13

R Items 9, 11 and 12 above.

W Many WBs' anecdotes which accuse ICAC, variously, of: discourtesy; failure to investigate; not taking the WB into their confidence; simply referring the matter to the people they were blowing the whistle on; declining to investigate unless the WB allowed his/her name to be revealed; general lack of competence.

O ICAC:

(i) refuses to involve the WB, often their greatest asset, in the investigation; thereby denying the input of further information the WB may have, making a finding of corruption much more unlikely, causing great frustration to the WB and often causing disillusionment to the WB and to other potential WBs.

(ii) frequently, refers the matter back to the organisation; thereby giving the perpetrators of the corruption, if it exists, time to victimise and to attempt to neutralise the WB, and to cover up the corruption.

(iii) routinely, warns the WB that his/her name may have to be revealed, without discerning and advising of circumstances where this is unlikely to be necessary; thereby discouraging the WB.

(iv) never advises the reason for refusing to investigate.

(v) very frequently, simply accepts the organisation's word against the WB's without further discussion or enquiry.

F (a) A reasonable person could not fail to form the belief, even from ICAC's own admissions in the Report, more so with the addition of WBA anecdotes, that ICAC's practices are to a great extent, and possibly almost entirely, inimical to complainants who are blowing the whistle on superior officers; and that ICAC's practices serve to a great extent, and possibly almost entirely, to frustrate and hinder such complainants in the exposure of corruption and to increase their risk of psychological stress and loss of employment.

F (b) The practice of many members of WBA of advising other WBs not to approach ICAC is completely justified.

I Do not the culture and practices of ICAC need to be radically improved?

Q Will ICAC address these matters?

Richard Blake

21 August 1998

(Site Editor's Note: For more on ICAC in NSW refer to the latter chapters of the 800 page book Victoria Police Corruption 2 and throughout the book Smuggled-2).

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