27 January 2006

Dr David Solomon,
Adjunct Professor,
POLSIS, University of Queensland

'Strike out law's biases'

I should like to submit for your consideration that unfortunately stronger whistleblower protection (as advocated in your recent article) is not likely to solve the problems of maladministration and incompetence in the Queensland public sector to which your article referred.

My interpretation of your article: Proper whistleblower protection is a necessary reform in Queensland. This could have prevented Bundaberg Hospital disasters. Disasters have hit government in child protection and health. Where next? Keeping a lid on problems that result from maladministration / incompetence is no longer viable. Premier is brilliant at apologizing for what went wrong. To prevent problems arising there is a need for better intelligence on what is going wrong - which ministers / public servants won't do if desperate to show they are doing a good job. It is more likely in an environment that encourages whistleblowers. EARC recommended whistleblower protection in 1991 - of which a watered down version was adopted in 1994. However when such problems are reported the department itself has to investigate it. But when problems arose in surgical incompetence, Queensland Health was part of the problem. Davis report recommended that Ombudsman should share responsibility for investigating such cases. There would be benefits in an effective whistleblower system (Solomon D., 'Strike out law's biases', Courier Mail, 23/1/06).

There is little doubt your article has identified a real problem. For example, a plausible list of prospective further administrative disaster areas is included in Improving Public Sector Performance in Queensland (on my web-site).

However such prospective crises can't be prevented by better 'intelligence' gained through whistleblowers, but only by having (a) a public sector staffed by competent people and (b) machinery of government which enables them to work effectively. The development of the philosophy of total quality management showed that huge payoffs come from getting things right first time, when compared with traditional practices which involved detecting and correcting errors which would be all that an emphasis on whistleblowers could achieve.

Unfortunately the core requirements of effective government are not currently available, and can't be re-created for years. For example:

• the professional competence and integrity of the Queensland Public Service has been compromised - primarily as an uncorrected outcome of the mismanagement of 'reforms' under the Goss administration (eg see Queensland's Worst Government?). The way in which eliminating the Westminster tradition of a professional Public Service has probably contributed to practical failures like those in Queensland Health is suggested in Systemic Defects in Public Administration; and
• ineffectual machinery of government has been created by 'amateurising' the Public Service - eg see Institutional Problems - which refers to: administrative complexity; poor infrastructure planning / management; complex / secretive cabinet processes; inappropriate activities in central agencies; virtually meaningless strategic planning linked to the state budget; dubious efforts to promote 'efficiency'; and misunderstanding of the role of government.

The core of the problem has been unrestrained political control over 'senior' appointments and the fact that the very complex competencies required for effective administrative support tend to be beyond the political system without expert advice.

Your article suggested that the Ombudsman should play a role in evaluating whistleblower complaints. Yet where is the Ombudsman to get the technical ability to assess complaints related to allegations about the incompetence of politically-favoured 'senior' officials (noting comments on the impossible challenges facing the CJC in dealing with the effects of politicisation in The Effect of Public Service Politicisation)? Moreover the Ombudsman's Office is on the record as being quite unconcerned that state legislation made it unnecessary to consider competence in making 'senior' appointments, and in fact being indifferent to any resulting injustices - see Ombudsman's reasons.

As a person who did try to blow the whistle on official incompetence in complex functions (eg in methods for managing public sector change; and economic strategy) and discovered universal indifference to the issues involved, I submit that the Whistleblower Act of 1994 (even if stronger and seriously administered) would have achieved nothing. No generalist body can provide support to an expert whistleblower who tries to expose deficiencies in a politically connected system which speaks the rhetoric of trendy and populist policies. While 'yes men' and cronies will lack the ability to make things work in the longer term (a point which is obvious to persons with higher levels of knowledge or experience), non-experts simply won't see what the fuss is all about until years later when it is impossible to avoid a crisis.

The only real solution is to re-create a serious requirement for professional accountability for senior public officials.

Regards

John Craig