Look Here First

WHAT YOU ALSO NEED TO APPRECIATE

While warnings are given about making approaches towards various agency and watchdog authorities, and expectations of a poor if not improper response may be reasonable, QWAG is not suggesting that these steps not be taken.

Unforeseen benefits can occur (eg, documents or tips from anonymous or covert whistleblowers from within the agency or watchdog), but, most importantly, you can be criticised in the steps that are taken for previous steps not taken. Make the approach, wait a reasonable period, and then use any delay provisions in the procedures to advance to the next authority if getting past a lower level authority is in your interests.

QWAG is NOT a publicly or privately funded organisation. The resources that we have are limited to those available from persons most of whom are suffering financial losses because they made public interest disclosures.

QWAG was established to advocate for the proper investigation of disclosures made by whistleblowers, and for the fair treatment of persons who make public interest disclosures.  QWAG regrets that it can only offer courtesy to those suffering from other forms of government or private sector corruption or maladministration or other forms of wrongdoing and related disputes.

What QWAG cannot do:

• give legal advice or other expert advice – QWAG members can share their experience, and QWAG writings can provide summary information, but this information should not be relied on as particularised for the circumstances faced uniquely by you
• represent you at a court or tribunal – QWAG may be able to point you to practitioners who have assisted other whistleblowers in the past, or to particular cases known to our members
• provide financial support.

Your first and subsequent points of call:

• Your union – decide whether you are seeking advice or representation … be wary if wrongdoing is widespread and the agency or firm’s leadership may have been politicised … the local representative and the union office organiser may assist you differently in this regard.
• Agency HR Department – decide whether you are seeking advice or seeking to make a complaint … be wary where wrongdoing is systemic in the agency or firm, the HR unit may be an important part of any systemic cover-up of the entity’s wrongdoing. Conversely, you may find it useful to ask for a copy of your organisations policies and procedures relevant to your matter. Knowledge of these procedures can be a shield ... knowing and applying the rules may empower you to defend yourself. This knowledge can also be a sword... it is not unusual for senior management to think that everyone else must follow the rules, except themselves.
• Office of the Public Service – this is the first level of review of decisions made by a public service agency … much to be wary of here, particularly delays. Delays can take your matter outside of the time limit for making submissions to the Ombudsman in some jurisdictions, or can prevent investigation past the time during which the agency has taken action to terminate you. If you were a public servant, then the Office of the Public Service may dismiss your matter as you are no longer a public servant.
• Ombudsman Office – this is an alternative to the Office of the Public Service, or a further option, particularly if delays by the agency and Office of the Public Service are approaching any time limits, or are allowing termination action to progress towards completion … be aware that the Ombudsman Office may likely send the matter back to the agency for the agency to investigate themselves, that the Ombudsman Office may not refer suspected official misconduct to the CCC where it may be a requirement to do so, and that the Ombudsman Office may meet with the CCC for reasons stated to be of benefit to the administrative system.
• Crime and Corruption Commission – any suspected misconduct or criminal activity disclosed by you should already have been referred to the CCC by the authorities to which you made your PID. A common experience reported by whistleblowers, however, is that this may not happen … be aware that your action to go directly to the CCC may be taken by the agency as a significant escalation of your, say, “trouble-making”; be aware also that, in this circumstance, a significant response by the agency may be quickly taken, particularly as in most instances the CCC may send your PID to be investigated by the agency about whose activities you made your PID. Remember, the CCC only investigates 3 percent of complaints, and there is a very high likelihood that your complaint will be referred back to your organisation.
• Police (State/Federal) – this is an alternative avenue to the CCC where your PID alleges criminal activity … be aware that the police may likely refuse to take a complaint and try to get you to take it elsewhere; if the Police do take a complaint, and the Police try to investigate the complaint, the agency may, through the agency’s lawyers, advise the Police that no officer of the agency will agree to be interviewed. Any attempt by the police investigator to inform the CCC or other watchdog of this action by the agency will need to go through senior Police authorities and may be stopped, and the investigation may then be stopped for lack of evidence.

Assistance in identifying procedures to be followed in taking any steps may be gained from internet sites, such as:

• http://www.ombudsman.qld.gov.au
• http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PubIntDisA10.pdf

Submissions made by QWAG to past reviews of whistleblower protection and whistleblower protection agencies are offered (with redactions) at the ‘Submissions’ page of this website.

Your points of call beyond the administrative arms of government are as follows:

• Parliamentary Committee on Crime and Corruption Commission [PCCC] – committees of politicians elected on a partisan basis may have been rendered of little use to its role by long periods of major party infighting … be aware that allegations have been made by whistleblowers that this Committee has ignored or failed to act when the CCC has been shown to have misled this Committee on complaints made against the CCC. The standing orders of the Parliament may be being used to silence whistleblowers by threatening them with contempt of the Parliament if they disclose to other authorities the matters that they disclose to the PCCC - and this suppression may be imposed for the rest of the whistleblower's life.
• Parliamentary Committee on Legal Affairs and Community Safety – this Committee looks at legislation, and does allow an occasional forum for debate on justice issues. To date, however, the Committee has appeared not to be interested in either the history of particular whistleblower cases for the value that those whistleblower cases have in exposing the shortcomings of legislation, or in the patterns of disclosures made in those whistleblower cases that may suggest that the Parliament, the government and the community may be faced with systemic corruption and / or loss of capability in significant agencies. This last criticism also has been alleged regarding the PCCC
• Your local Member of Parliament, Senator, or Member of the Legislative Assembly – independents and small parties have been found to be the most receptive to whistleblowers, according to the reports of whistleblowers who have tried this avenue … be aware that Parliamentarians can, if their party supports them, get documents tabled, and, when they are members of Committees, can get submissions, with or without redactions, published on the Parliamentary website. Few, however, have been able to force corrective action from agencies and watchdog authorities, on particular whistleblower cases where procedures and the law may not have been followed. Committees tend to settle for a review of agency or watchdog procedures – any new procedures thereafter are also allowed by the watchdog authorities to be breached, leading to another whistleblower case and another parliamentary review.
• The Media – this is the most effective avenue for whistleblowers in highly politicised agencies or industries, for example, the agencies with uniforms – Defence Force, Police, and Hospitals – which tend to react on each news cycle to media coverage of that agency’s or industry’s activities. That media reaction can include actions that affect the whistleblower, for example, if the agency or firm decide to use the media to inform other members of the firm or agency what will happen to them if any member also blows the whistle on that firm or agency. Be aware that important media organisations may have strong political agenda, and that you may be able to put more trust in particular journalists than you may be able to place in media outlets. News entities have turned on whistleblowers where the disclosures by the whistleblowers have threatened the political agenda of the news organisation.

The Internet and Social Media – this is an avenue for whistleblowers who decide that their aim is to communicate their disclosure to the public … good examples include the bullying blog run for teachers and the Facebook page run on fire ants in Queensland, and postings from Major Allan Warren, fostered by a free public access website, on abuses of military justice.

Your points of call within the legal or quasi legal system are as follows:

• Legal representation – for whatever avenue you take, good legal advice will differentiate for you, on the one hand, what are the legalities of the suspected wrongdoing and reprisals that you have disclosed, from, on the other hand, what you may see to be the morality of a situation. This will assist you to a realistic appreciation of your legal situation, rather than a naïve appreciation. Be wary, however, that law is a profit driven business and not a crusade, and that Government is a client or potential client that can bring significant business or withdraw significant business from a legal practice. The content to allegations from whistleblowers about legal practices include:
  • The whistleblower’s civil proceedings were undermined or terminated without proper cause by the whistleblower’s own lawyers, say, by demanding immediately prior to a court hearing exorbitant fees for preparatory services, or the whistleblower would face the costs of finding and preparing alternative legal representation in very short time for that critical hearing, and for defending the lawyer’s suite for those exorbitant costs;
  • The whistleblower, thinking they were on a no-win-no-fee contract with their lawyer, was forced by their lawyer to accept a settlement with the entity subject to litigation, a settlement that covered the lawyers costs and little more. The force used, allegedly, was the threat that, if the whistleblower did not settle, the lawyer would sue the whistleblower for the lawyer’s costs to date;
  • In the above suites or similar by the lawyer, the lawyer approached the barrister acting for the whistleblower in the whistleblowing proceedings, for the barrister to represent the lawyer in the lawyer’s suite against the whistleblower over fees – if the barrister agreed to switching clients (remember that barristers depend on lawyers to refer business to the barrister), the whistleblower would also then have to obtain a new barrister as well as a new lawyer.

• The Government as a Model Litigant – this rule asserts that, in administrative procedures and legal or quasi-legal proceedings, the government should act reasonably in the adversarial contest between the complainant and the defender … the allegations made by whistleblowers tend to show that expecting the government to act in this way may be naïve. It may be advisable for whistleblowers to adopt a risk management approach, and consider the likelihood and consequences of the government engaging in cover-up and in denying the whistleblower all proper processes. The management of the agency or firm may adopt the legal attitude that a whistleblower only has a right if the whistleblower is prepared to pay for a Court to affirm that right, even for the usual and common aspects of legal processes.

• Civil litigation before the Courts – if you have good lawyers, deep pockets and a lawful if not a model litigant in the government, this avenue may be workable for you to draw a reasonable settlement … but be aware of the following situations that have been reported or alleged by other whistleblowers:
  • causes of action such as breach of contract or unfair dismissal may have greater prospects of success than action under any tort available to you from whistleblower legislation;
  • magistrates or judges may be appointed to officiate your litigation who have a real or perceived conflict of interest or bias towards the matters being litigated … advising the Court in advance as to who these magistrates and judges are, with an allegation of their conflict or perceived bias, may assist the Court to a fair appointment or to an unfair appointment;
  • magistrates and judges can cause the matters to go to mediation, which mediation can be prejudiced by conflict or perceived bias in the mediator (the mediator has, say, represented the government on similar fact proceedings), or by the magistrate or judge sending the whistleblower and the government to mediation after the whistleblower has given disclosure to the government but before the government has given disclosure to the whistleblower;
  • magistrates and judges, despite their capacity at law to receive and refer PID’s, may decide not to refer to the CCC for investigation suspected official misconduct by the government, say, alleged destruction or disposal of evidence sought by the whistleblower for the proceedings, prior to any mediation or hearing

• Criminal proceedings – these proceedings, whether related to the wrongdoing disclosed by you or reprisals taken against you, are controlled by the prosecutions Office of the government, for which proceedings you are likely to be a witness … be aware that whistleblowers have alleged that prosecutions may have failed to use evidence provided by the whistleblower on particular elements of an offence, resulting in decisions to terminate proceedings or decisions to find no case to answer or find the defendant not guilty
• The quasi-judicial Inquiry, including a Royal Commission – these occur when the Executive of government acknowledge or are forced to acknowledge that there may be wrongdoing, so there may be interest in your disclosures … but be aware that these inquiries can be controlled away from your particular disclosures by the matters included or excluded from consideration by the terms of reference, or by the parties given standing and not given standing before the Inquiry by the Chair or Commissioner heading the Inquiry, or by the selection of witnesses called as witnesses by the Counsel Assisting or Inquiry Officer