Danielle In The House, November 28: Bill 4, Public Interest Disclosure (Whistleblower Protection) Act

Ms Smith: Thank you, Madam Speaker. Well, here we are, finally, on third reading, and I’m pleased to speak to Bill 4.

Remember that when I first spoke on this, I said that we had hoped to be able to support it, that we were going to seek significant amendments to it, and in the absence of those significant amendments we would not be able to support it. So I will be voting against this bill. I am looking forward to seeing my colleague the hon. Member for Calgary-Fish Creek bring forward a piece of private member’s legislation that will look like the kind of whistle-blower legislation that this government had the opportunity to draft and failed at doing.

When we started looking at this legislation, we said we were going to judge it by three criteria. We wanted to see legislation that would allow for whistle-blowers to blow the whistle anywhere, anytime, for any reason.

One of the groups that the hon. Member for Calgary-Fish Creek has been working with in developing her draft legislation for her private member’s bill was FAIR, the Federal Accountability Initiative for Reform. They took the time to go through and do an assessment of Alberta’s bill, even though they have been in the past a research agency that looks at federal legislation. They don’t have much nice to say about the federal legislation. They have said that the federal legislation has cost taxpayers more than $30 million with, as they quote, “virtually nothing to show for it.”

They say, “No other developed country has suffered such a spectacular and humiliating meltdown of its national whistleblower system” as this system. Unfortunately, they do say that Alberta’s bill, this legislation which models after much of the errors in the federal bill, is not much better.

I want to read a couple of things from the report because I think it’s instructive about the approach that they think that this government should have taken, which would have allowed them to endorse it. What they say about this bill is that the shortcomings and loopholes of this bill are so serious that any of the rest doesn’t matter because the law as it’s presently configured simply cannot be effective. I think that’s important.

The other thing that is important is that in looking through the very serious concerns that they have with this legislation, they point out 15 major flaws. They say that it does not look like a serious attempt at creating an effective anticorruption system: it looks more like an attempt at window dressing – or the result of a failure to understand the most basic requirements of whistleblower legislation.

There are three other areas from this report that I want to quote at length before I go into some of the more summary arguments that they make. Don’t worry; I won’t go through all of the 15 major flaws that they have with the bill. I will table this report, if it hasn’t been done already, so that members can read it for themselves. The problem that we see, one of the big, serious issues, is that the most common types of wrongdoing are excluded. In the definition of wrongdoing the act doesn’t reference the most common types of misconduct – namely, the violation of policies, violation of codes of conduct, and the like – even though they can have very serious consequences.

Here’s an instructive example, I think. They give this example that most of the misconduct exposed within the financial industry during the major financial meltdown and economic devastation that it caused around the globe was in fact perfectly legal even though it was clearly immoral and unethical and violated numerous policies. That I think is instructive. Just because something doesn’t violate the letter of the law doesn’t mean that it’s ethical. It doesn’t mean that it doesn’t breach some kind of code of conduct or policy. These are the kinds of things that we want to give our public servants the latitude to be able to report on without fear of retaliation.

Because what happens – and I’m sure the hon. Member for Calgary-Mountain View and the hon. Member for Edmonton- Meadowlark would be able to go on at length about this, about how false accusations and smears are routinely used to ruin truth tellers’ reputations and to prevent them from ever finding employment again in their chosen field. Sometimes it results in the loss of income. Crushing legal bills often lead to the loss of home, and families can be torn apart because of extreme stresses. It’s not surprising that some whistle-blowers, having lost everything yet still failing to stop the wrongdoing, commit suicide. That’s what we’re talking about here, Madam Speaker. That’s why this is such a serious issue and why we had hoped that this bill would address it and why we’re so disappointed that it doesn’t.

This is the last piece that I’ll quote from here. The primary purpose of whistleblower legislation is to deter wrongdoing that harms the public interest, so it’s essential to take appropriate, visible action when misconduct is proven. However, there is often great resistance to this, especially when senior people are implicated in some way, or simply trying to save face. It’s not at all uncommon for proven wrongdoers [to] get a ‘soft landing’ or even to be promoted.

That, once again, is the problem with a system where you’re forcing everyone to go through internal departmental processes when it could well be that the very people who are breaking the codes of conduct, who are creating a toxic work environment are the ones that have been continually promoted up the food chain and are now the bosses overseeing this process. This is the reason why this legislation is so fundamentally flawed. It hands over the power to one individual through this internal departmental  structure to be able to have unlimited discretion to do anything or to do nothing at all.

That’s the bigger fear, that they will do nothing at all. There’s no avenue for appeal. There’s no public disclosure despite the best efforts of the hon. Member for Edmonton-Beverly-Clareview to add some requirements for public disclosure. I agree with the hon. Member for Lac La Biche-St. Paul-Two Hills. We probably should have changed the name of the bill to the Public Interest Nondisclosure Act after what I saw this evening with the voting down of those two amendments. There is no remedy, so there is no described forum in the legislation for how an individual could seek a remedy or redress or compensation.

One of the things that FAIR points out and that I think, again, the hon. Member for Edmonton-Beverly-Clareview tried to address is that the very best whistle-blower legislation focuses – and this is in the U.K., for instance – not on specifying the processes for investigation of disclosures and so on but focuses almost entirely upon the mechanism for providing a possible remedy for the whistle-blower. That’s what whistle-blower legislation is supposed to do. The modest proposal from the Member for Edmonton-Beverly-Clareview, making it a mandate of the commissioner to ensure that a public servant would be able to keep their job, seems to me to be very baseline stuff if you’re going to try to create whistle-blower protection that actually works. I’m very disappointed that the members opposite refused to support that amendment.

The other issues, of course, are not being able to go to the media, not being able to go to an MLA and be assured that your disclosure through those mechanisms is going to yield any positive results, and I’ll talk more about that in just a minute. The FAIR organization, the Federal Accountability Initiative for Reform, says that there’s been no evidence of extensive research done on this bill despite what the members opposite may say. If there had been extensive research done on this bill, it would not be as poorly written as it has been.

I thought that the Member for Lacombe-Ponoka asked the most relevant question. To me, it really resonated. He said: who is this bill for? This bill is not for the hard-working public servants, who are working in an environment where they observe wrongdoing, they observe breaches, and they’re terrified to come forward and talk about it because they fear retaliation. That’s who the bill is supposed to be for, but the way this bill is structured, it is structured to keep all of that information internal, to bog it down in processes, to keep the information internal, to never really get any true light shone on incidents that are occurring, and to give no real remedy. I think that for those serious reasons this is a bill that should not be supported.

We had some 20 amendments that were put forward. I think that in total there were 27 amendments that were put forward. I guess what I want to do in just finishing off my remarks on this this evening is just remind members of what it is we were trying to do with this piece of legislation. We were trying to create a safe environment for public servants to come forward to report wrongdoing, and I have to say that there is an incongruity that I can’t help but notice between what the intention of this legislation was supposed to be and the experience that we have had on the opposition benches virtually every single day since we came into this Legislature.

We’ve been raising very serious issues of ethical violations. We’ve been raising very serious issues of breaches of code of conduct, very serious issues of breaches of expense policy, very serious apparent breaches of the conflict-of-interest code, very serious shortages of dollars leading to the prosecutors’ offices having difficulty keeping up with their workload. These things, I think, that we are raising are the kinds of things that we want our public servants to be raising so that they can be addressed. Yet we raise these issues. For instance, let me go through a few of them.

The London expense trip began as an $84,000 trip in the official public press release. Then we found out that there were a bunch of expenses that weren’t included, so it ballooned to $500,000. By the time we ended up with the disclosure, it turned out it was closer to a million dollars, and we still can’t get a full list of all of all of the receipts for all of the people who were on that trip. We’re going to keep on asking.

The issue of health care expenses. I ask the Health minister virtually every day about why he won’t release all of the expenses for all of the executives for all of the health regions going back to 2005. His response is: well, keep on doing your FOIPs, one FOIP at a time. That’s the kind of response we’re getting as an opposition when we’re trying to raise legitimate issues of health care expenses that, once revealed, have demonstrated that there have been some serious flaws in the way the expense policy has been interpreted in the past.

We raised the issue today of a contract that was given to the firm of the Premier’s ex-husband, serious issues, we think, warranting questions. We believe it’s our job. We believe that there might be a public servant out there who is a little bit concerned about the closeness of the decision-maker when that decision was made. We would have thought that this is the kind of thing you’d want a public servant to bring forward. Yet every time we stand to ask a question, we’re shouted down. We’re ridiculed. We’re told that this is not appropriate business to bring forward in the Legislature.

We brought forward the issue of the prosecutor in Airdrie dropping the case of a young woman who had been abused for nine years. Why was it dropped? Well, because there weren’t enough resources to be able to get the case to court in a timely way. We raised this, and once again the Justice minister shouts us down, tells us we’re wrong, says: oh, we’ll do an internal investigation. He doesn’t want to have a full review. These are the kinds of things you would expect that maybe a public servant would want to bring forward.

The health inquiry, the allegations of queue-jumping: when a public servant, Dr. Stephen Duckett, came on the scene, he stopped any preferential access that MLAs had to get minor tweaks to the waiting times for their constituents and other friends.

We want to have a health inquiry that goes back and investigates all of that. Well, too bad. The terms of reference are: looking forward. When we try to put forward a notification to the inquiry to say, “Hey, maybe here are a few people of interest that you might want to have a look at,” we’re ridiculed. We’re told that we’re interfering. We’re told that we shouldn’t.

The fiscal update. We hear from the minister that he’s given a full and complete fiscal update. Well, that’s not what the Alberta Auditor General said. He’s investigating for breaking the law. Maybe this is the kind of thing that a public servant would have wanted to bring forward before this shoddy piece of work was brought forward and presented to this Legislature.

The issue of a high donor giving what is alleged to be a $430,000 cheque to a single political party: I don’t know; it seems to me that the media was the one who blew the whistle on that, talking to someone internal to find out about it. It could have been cleared up very easily by just releasing copies of the cheques and the deposit slips, again the kind of thing you’d think that you would want some hard-working employee to bring forward if they think that there’s a breach of the elections law. We bring it up, and we’re told that it’s an inappropriate avenue of discussion and line of questioning in this Legislature.

The Election Act: we have now seen over 80 investigations launched. Most of them have been launched because members of the opposition, members of the media got tips, got phone calls, got people saying, “Hey, maybe this isn’t right” because in the law you’re not supposed to have public institutions funnelling taxpayer dollars back to a political party. You’d think that this is the kind of thing that maybe public servants would want to bring forward, but once again we bring it up in the Legislature, and we’re told that it’s not appropriate business to bring up, to bring forward.

The issue of the power lines. We finally saw some revision to the power line legislation, that’s going to restore, as it should, an independent needs assessment for those power lines, but no one wants to go back and look at all of the reasons why those initial power line contracts were approved without proper scrutiny, without an independent needs assessment. I would note that the parent company of one of the companies who is going to be a huge beneficiary just announced another criminal prosecution, one of its executives. I don’t know. Maybe there’s someone in the public service that might want to bring this forward, might want to talk about something that is known about: what were the reasons behind why this decision was made against the public interest? These are the kinds of things that we are bringing forward as an opposition.

These are the kinds of things that MLAs are hearing about. These are the kinds of things that the media are hearing about.

You have to understand why I find it a little incongruous that we’re standing here debating a piece of legislation to be able to give the public sector the power and the latitude to come forward and to talk about these things without being punished, yet when we bring them up in the Legislature, we are called bottom-feeders.

People make jokes about us being failed actresses. Yeah, I did hear that one even though I was walking out. We get shouted down by the folks across the way. When we’re trying to put forward amendments late into the night, we’ve got the Deputy Premier, who rips them up and couldn’t show more derision. Then they have the nerve to actually lecture us on decorum in the Legislature. This is the behaviour of a government that then puts forward legislation to create a safe environment for public workers, for public servants to come forward and to report wrongdoing.

Do you see, Madam Speaker, why we just can’t support this legislation? There is such a huge divide between the talk of this government and the walk of this government. I don’t believe it.

The public doesn’t believe it. Our hard-working public servants don’t believe it. We’re not going to pretend that this sham of a legislation is anything other than that. It is the Public Interest Nondisclosure Act. It will not protect whistle-blowers. It will not protect public servants. It is designed to protect the government.

For that reason, I will be voting against it.

Thank you, Madam Speaker.