The Whistleblower Protection Bill 2015 was submitted to Parliament on Friday 13th November 2015. Those proposals will create legal protections for persons making reports of wrongdoing in both public and private bodies. A Joint Select Committee has been established to examine these proposals and report back to the Parliament no later than 22nd January 2016, so this is the time to consider these and make formal comments.
According to the Association of Certified Fraud Examiners 2014 Global Fraud Study, whistleblowing is the best method of detecting fraud –
“…Tips are consistently and by far the most common detection method. Over 40% of all cases were detected by a tip — more than twice the rate of any other detection method. Employees accounted for nearly half of all tips that led to the discovery of fraud…” (pg 4)
Given the levels of improper and illegal conduct with which our society is beset, these proposals are long overdue and I welcome them. That said, it is important to examine the detailed provisions and exemptions, together with the introductory statement made by Attorney General, Faris Al Rawi.
The Explanatory Note describes the purpose of the proposed law as –
“…The purpose of this Bill is to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct in the public and private sector, to protect persons making those disclosures from detrimental action, to provide for the matters disclosed to be investigated and dealt with and to provide for other matters connected therewith…”
The main provisions which drew my attention were –
Improper Conduct – This is widely defined to include criminal acts; failure to comply with legal obligations; conduct which threatens health & safety or the environment; reprisals against whistleblowers and concealment of improper acts. The act of discrimination is listed at (h) with the qualifier of ‘unfair‘ discrimination and I do wonder if the inclusion of that one word will open up a zone of uncertainty and even suggest that certain acts of discrimination are in fact ‘fair’.
The most interesting item was –
“…(f) conduct that shows gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds;…”
The main concern here is that the failure of some of the largest State Enterprises to produce audited accounts for years on end place them squarely within this class of ‘improper conduct’ since there is no way to properly operate a substantial enterprise without accounts. That would be completely unacceptable in the private sector and public money must be managed and accounted for to a higher standard than private money. Some of the State Enterprises and Statutory Bodies in this unacceptable position are HDC, EMBD, CAL and of course, UDECOTT. Will those organisations get a ‘free pass’ and continued access to Public Money, or is this a new beginning?
A minor issue is the use of the phrase ‘public funds’, which differs from the key phrase ‘public money’ used in the Public Procurement and Disposal of Public Property Act 2015. The phrase in this law should be ‘public money’, so as to avoid confusion.
Public Body – is defined as per the Public Procurement and Disposal of Public Property Act 2015, so that is solid.
Detrimental Action – is now prohibited and the definition includes dismissal; disciplinary action; demotion; transfers; refusal of transfers; detrimental alteration of employment terms; denial of appointments and a wide scope of injury, loss or damage. It seems to me that there is a significant gap here since lawsuits are not mentioned in the definitions section, yet S.17 (1) states –
“…a whistleblower who makes a protected disclosure is not liable to any criminal, civil or disciplinary proceedings for having made such a disclosure…”
Legal Professional Privilege – is another aspect which concerns me since S.8 protects documents which have that privilege –
“…8. Nothing in this Act authorises a person to disclose information protected by legal professional privilege and a disclosure of such information is not a protected disclosure…”
This is unsatisfactory in my view since it is precisely in such documents that evidence of a wrongdoer having been advised of the illegality of their improper and illegal actions can be found. This was the issue in the Invader’s Bay case which the JCC brought to seek publication (under the Freedom of Information Act) of certain legal advice which the then Minister of Planning & Sustainable Development was trying to suppress. That legal advice was on the specific issue of whether the State was in breach of the law in relation to the development process for valuable State lands. In July 2014, the JCC won that case in the High Court and that ruling effectively elevated the public interest above any legal professional privilege those documents might have had. The State appealed that ruling and the judgment is now reserved, but it seems to me that S.8 is a significantly retrograde step on this important issue.
Rewards – There seems to be a contradictory approach to the important question of if and how whistleblowers are to be rewarded. There are whistleblowers who were participating in the crimes and there are those who were merely observing. How do these proposals deal with those different species of whistleblowers?
The Hansard for 13th December 2015 records Al Rawi’s only statement on rewards at pg 30 –
“…this Government believes that the Bill will seek to encourage whistle-blowers who commit crimes to come forward by encouraging a system of mitigation and reward…”
That is set out in S.18 (3) which proposes that the Court would have discretion in the case of a whistleblower who was participating in the crime to have the sentence reduced to reflect the assistance given to the law enforcement authorities.
But in the case of ‘Protected Disclosures’ as defined in S.7 (1), there is a specific prohibition –
“…(d) the disclosure is not made for purposes of personal gain;…”
I agree that reduced sentences for active cooperation is a good step to tackle these issues of corruption, but it seems retrograde to only reward participants in the crimes, yet prohibit those observers who might want to make a report for a reward. Serious consideration should be given to a reward fund to encourage reports.
Finally, we return to the age-old question of just when are we going to seriously investigate, prosecute and conviction the white collar criminals who operate with impunity in our country? Without an effective process to take these criminals to prison and recover stolen monies we will be only be ‘spinning top in mud’. This proposed law is an important step in the right direction since it ought to increase the quantity and quality of information available to the law enforcement authorities.
SIDEBAR: Designated Authorities
These are key Public Institutions which will be required to establish Whistleblowing Reporting Units to receive and investigate reports within 45 days.
The proposed law stipulates these as –
- Auditor General’s Department
- Board of Inland Revenue
- Bureau of Standards of Trinidad and Tobago
- Central Bank of Trinidad and Tobago
- Children’s Authority of Trinidad and Tobago
- Customs and Excise Division
- Elections and Boundaries Commission
- Environmental Management Authority
- Fair Trading Commission
- Financial Intelligence Unit of Trinidad and Tobago
- Integrity Commission of Trinidad and Tobago
- National Physical Planning Authority of Trinidad and Tobago
- Office of Procurement Regulation
- Office of the Director of Public Prosecutions
- Office of the Ombudsman of Trinidad and Tobago
- Trinidad and Tobago Police Service
This article was compiled from my speaking notes at the T&T Transparency Institute’s event for the UN’s Anti-Corruption Day held at UWI on Wednesday 9th December 2015.