Sunday, February 26, 2006

Whistleblowing Resources - International

This is a follow-up to the post from earlier today Whistleblowing Resources that focussed on Canadian material.

United States:

  • At the federal and state levels, there are dozens of laws protecting whistleblowers. The first U.S. federal law seems to be the National Labor Relations Act of 1935 that protected workers denouncing illegal labour practices. Since that day, 50-plus federal whistleblower and anti-retaliation laws exist, and environmental, labour, occupational health and civil rights laws have been amended to incorporate whistleblower protections
  • False Claims Act: in 1986, the American Congress added anti-retaliation protections to the False Claims Act. These provisions, which did not exist previously, are contained in 31 U.S.C. Sec. 3730(h): "Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of his employer or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole"
  • Whistleblowers Protection Act: this is the most significant American federal statute aimed at protecting federal whistleblowers. It covers civil service employees (it does not apply to uniformed military, employees at intelligence agencies, the Federal Bureau of Investigation, government contractors). It allows employees to seek intervention by an outside independent agency, the Office of Special Counsel; access to an administrative legal proceeding to hear their case at the Merit Systems Protection Board; and, ultimately, access to the court to hear appeals to the case
  • Government Accountability Project: anindependent not-for-profit NGO that helps public servants blow the whistle, the GAP tracks legislation as well as news in a number of topic areas
  • State Whistleblower Laws (National Conference of State Legislatures): "Although legislatures in all fifty states have enacted whistleblower protection statutes, the measure and scope of state laws vary greatly. Most state statutes focus on protection against employer retaliation and provide a cause of action and remedies for whistleblowers who experience job-related retaliation as a consequence of their revelations. There are also important points of divergence within the anti-retaliation provisions, including the type of whistleblower protected, the subject of protected whistleblowing, the requirements for filing a grievance and appeal, and the remedies provided to the employee suffering retaliation. Most states offer general whistleblower protection to public employees, while fewer than half offer the same protection to all workers. States which have enacted whistleblower protection laws for private sector employees are even fewer. Many state statutes protect whistleblowers whose disclosures involve mismanagement, waste or abuse of authority. "

International:

a) Background

b) United Kingdom

  • Public Interest Disclosure Act: focuses on protection and facilitation of disclosures in the public or private sector. The Act aims to protect the person making the disclosure from reprisal when disclosures meet the criteria for protection under the Act, that is, the individual has a reasonable motive to believe (art. 1) "(a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding." The related Civil Service Code specifically covers public sector employees
  • Public Concern at Work: "an independent authority on public interest whistleblowing. Established as a charity in 1993 following a series of scandals and disasters, PCaW has played a leading role in putting whistleblowing on the governance agenda and in influencing the content of legislation in the UK and abroad." It provides useful background material about the Public Interest Disclosure Act as well as an annotated version of the Act

c) Australia

  • Public Service Act (federal): the primary legislative source for the protection of disclosures and the person making the disclosure, though the focus of the statute is not primarily disclosures of wrongdoing. Also see the whistleblowing policy documents from the Public Service Commission. The definition of wrongdoing in the Australian disclosure regime encompasses any breach of the Code of Conduct for public servants. The Code of Conduct includes affirmative provisions for public service employees to comply with such as acting with honesty and integrity, care and diligence; complying with lawful and reasonable directions; using Commonwealth resources in a proper manner; not providing misleading information; and not misusing inside information or one's duties, status, power or authority

The various Australian states have explicit whistleblower protection laws:

d) New Zealand

  • Protected Disclosures Act, 2000: the Act requires that disclosures must generally be made internally in the first instance, with few exceptions. Entities responsible for disclosures are categorized as "appropriate authorities", including the Commissioner of Police, the Controller and Auditor-General, the Director of the Serious Fraud Office, an Ombudsman, the Parliamentary Commissioner for the Environment, the Police Complaints Authority, the Solicitor-General, the State Services Commissioner, and the Health and Disability Commissioner. It is apparent that the independent Office of the Ombudsmen is to be the primary recipient of disclosures. The Act covers both the public and private sector persons making disclosures and wrongdoing. Essentially, all employees, including former employees and contractors, in the public or private sector, may make a disclosure of wrongdoing, which includes "(1) an unlawful, corrupt, or irregular use of public funds or public resources; (2) a serious risk to public health or public safety or the environment; (3) a serious risk to the maintenance of law, including the prevention, investigation and detection of offences and the right to a fair trial; (4) an offence; and (5) an act or omission by a public official that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement"

e) South Africa

  • Protected Disclosures Act, 2000: employees who report wrongdoing in both the public and private sector receive protection from retaliation under the Act. Wrongdoing is "any conduct of an employer or an employee of that employer that shows or tends to show in actuality or likelihood of any of the following: (1) criminal offence; (2) failure to comply with a legal obligation; (3) miscarriage of justice; (4) danger of health or safety of an individual; (5) damage to the environment; (6) unfair discrimination; or (7) deliberate the concealment information pertaining to any of the above matters"

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posted by Michel-Adrien at 4:55 pm

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