The Whistleblower Proposals

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 –

  1. Auditor General’s Department
  2. Board of Inland Revenue
  3. Bureau of Standards of Trinidad and Tobago
  4. Central Bank of Trinidad and Tobago
  5. Children’s Authority of Trinidad and Tobago
  6. Customs and Excise Division
  7. Elections and Boundaries Commission
  8. Environmental Management Authority
  9. Fair Trading Commission
  10. Financial Intelligence Unit of Trinidad and Tobago
  11. Integrity Commission of Trinidad and Tobago
  12. National Physical Planning Authority of Trinidad and Tobago
  13. Office of Procurement Regulation
  14. Office of the Director of Public Prosecutions
  15. Office of the Ombudsman of Trinidad and Tobago
  16. 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.

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14 thoughts on “The Whistleblower Proposals

  1. Just out of curiosity, and I must confess that I haven’t read it as yet, is there anything which deals with false whistleblowing?

  2. How was such a list of public Institutions selected?Was there a quantitative or qualitative metric applied?If financial fraud is one of the concerns that would be treated by this proposed Act why have certain companies and Ministries like NGC and Petrotrin or the Ministry of Energy to which these companies report exempted.Am I to believe that fraud does not exist or is not a risk factor here?These should be included,considering the volume of revenue generated by Oil and Gas companies.I believe that the risk of fraud is potentially higher with these revenue giants.
    Another concern is about the location of the Whistle blowing units and officers.If these units and officers would be stationed within these specified Public institutions,I question the autonomy and transparency achievable due to a location which encourages association and affiliation amongst possible perpetrators,whistle blowers,and whistle blowing officers,thereby challenging any such investigation.I see a need for third party involvement,by which, the initial report is made externally (to a foreign body) then channeled to the investigative unit or officers.There should be progressive online monitoring of the officers by anonymous agents who keep track of the investigation .This continuous online monitoring should also apply to full disclosure of evidence gathered etc…

  3. Minor correction – I believe the law was tabled on 13 November – not December.

    Thanks for posting. Oddly enough, this morning I happened to read the Express article dated 14 November about this legislation and found the article difficult to follow particularly when it delved into the proposed law. A couple hours later, your post chimed in on my email and it was a lot clearer to follow. So this post was timely (in my case) and pertinent (as always).

  4. Great news for tourists who become victims of crime in Barbados! The culture of silence and the head in the sand mentality is on the brink of CHANGE! Just maybe now the MANDATORY CHILD ABUSE REPORTING PROTOCOL also known by me as THE CHILD ABUSER WHISTLEBLOWER PROTOCOL can too become LAW in this seemingly lawless country!

  5. Good and evil reside in us as surely as body and soul. The one we feed is the one that will grow. The media, commerce and greed have been manipulated by the learned of our global society to ensure that we either comply or crumble. In the Christian world, Jesus was betrayed by man for 30 pieces of silver. Today our standards are much lower since we pay much more for destruction (war budgets, drugs, alcohol and pornography) than for elevation (education and health budgets, books, hygiene and the security of the weak) and in both we easily find extortion, fraud and corruption. All societies have recorded solutions to their problems that are sidelined by those who recognise the dual power of love and honesty so, like Socrates and the myriad others like him, we must continue to fearlessly confront all oppressors with non-violence, love and discipline or drink the hemlock of silence.

    Afra’s coerced resignation from the JCC signals just how far we will go to protect the guilty. See: http://www.ttonline.org/afra-resigns-from-jcc/#

  6. AFRA I suggest that one looks also as transparency International ( not the local chapter) website c and IACC for important lessons in this area.( global corruption reports).. SHam legislation will not work !

    AS a past transparency chapter director ( local TTTI) who was hounded by current PM for comments delivered about landate enquiry when TTTI highlighted Global corruption report 2005 on construction industry ..
    I know too well that T&T legislators use this as SHAM –

    but we live in hope…. it is a step but it is not the solution..

    since it appears often that the corrupters and their friends/financiers control the legislators !!

    ( did you know that the procurement legation that replaced CTB act was engineered by same JCC that were complicit with UDECOTT scandal!!?as per UFF enquiry …. yet post UFF still no investigation!!

    also consider the watered down parliamentary _ anti corruption ” law under past PP regime
    laid by fmr minister of finance Larry Howai and watered down by opposition senator led by AL Rawi .this ensures this legislation is just a sham..under guise bipartisan JSC ….

    after who will expose themselves to threat against life for whistleblowing ..consider UTT / udecott / Clico to say the least

    it is only when international agents act as in Airport scandal and FIFA can we really expect to see whistleblowing work ….

    neither The STATE nor the TTPS or Judiciary can protect any whistleblower against a sitting govt in..
    T&T.. …since these are all perceived as part of the problem not the solution……they TOO are PERCEIVED CORRUPTED !

    as T&T political history of Gene Miles will show , if we are ever brave enough to truly whistle blow the GM story( tx Fr de vertuil._) reminds how forceful state will react…

    so will whistleblower legislation add any more to systems we have …or just be another ineffective parliamentary act on the legislative books ( like integrity commission /PAC/PAEC/auditor general report)

    How about if we simply allow the completion of the COLMAN enquiry into CLICO – the biggest financial scandal against T&T & Caricom citizens ..why was it stopped after HCU?and let chips fall where they should..

    and follow though with prosecution out of the UFF enquiry – many of JCC will have to account for their complicity with UDECOTT ( after all PM Rowley attacked UDECOTT this during a past PNM regime…)

    will it allow the AL rawi( now AG) one alexander place rental to be investigated ? or even the THA_ MILSHERV deal “/

    or will it only be selectively used against the perceived corrupt past PP govt only..?

    MR Raymond.. when JCC are held to account then and only then will I believe ..

    so when we take out the spec in ones own eye first ( JCC) then change will happen

    pb

    disillusioned FMR TTTI director

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