It must suddenly be in style for legislators to dream up draft laws with ironic names. Just as the federal Conservatives have pushed a Fair Elections Act that, until dramatic changes were announced this week, would have only raised doubts about the fairness of future federal elections, the Yukon Party has proposed whistleblower protection rules that don’t actually protect whistleblowers.
The Yukon government has long promised to deliver a whistleblowing protection bill. How that came to be is a bit of a mystery. Maybe the Yukon Party felt it needed a symbolic accountability item on its election platform. The provinces all seem to have similar laws, so what could be the harm of doing the same?
The many years of foot-dragging that have followed underlines the fact that expanding government oversight really isn’t a big preoccupation of our government. Perhaps during that time it occurred to our legislators that such a law is more than likely to only create future headaches for them, by offering officials more ways to spill the beans when a future embarrassment happens.
Such concerns would help explain how the proposed rules have been written, setting as they do high barriers for officials to go public with concerns about government misconduct. There must be an urgent matter of public health and safety. Further, officials may only go public after telling the police or chief medical officer of health, and their disclosure must follow the instructions of that authority.
That would leave unprotected employees who seek to expose financial shenanigans, political corruption and many other forms of scumbaggery, provided those wrongdoings don’t pose an imminent health risk.
Yukon’s ombudsman has also expressed concern that the law only allows her, as the official in charge of pursuing investigations into whistleblower complaints, to recommend remedies. As she’s noted, the ombudsman would then depend on the government - the same body she had just investigated for acts of reprisal against a whistleblowing employee - to follow through on her advice. As a consequence, she worries the proposed law could end up “being a trap for people who think they’re being protected” - as a European Union study concluded when laws with similar provisions were studied.
But the alternative will be unappealing to our government. It would see them cede decision-making powers to the ombudsman, and that’s something they’ve so far been loathe to do, as evident in their brush-off of her suggestion that she be empowered, as the territory’s privacy czar, to release otherwise-protected information when it’s in the public interest to do so.
The Yukon Party’s proposal, as it stands, is worse than having no whistleblower law at all, in that it creates the illusion that employees crying foul will be protected. Having created the pickle it now finds itself in, the government has two choices. It could punt on plans to produce legislation by the fall and continue to drag this particular promise out indefinitely - in other words, give up and do nothing. Or it could follow through on its commitments and produce a law that actually works.
The latter option would be the admirable thing to do - perhaps cabinet can find inspiration in how the federal Conservatives have agreed to remove the most noxious bits from their Fair Elections Act, after facing overwhelming criticism by experts. (So much for our MP’s previous assurances that the bill’s now-abandoned features would be fine and dandy.)
Writing a good whistleblowing law won’t be easy. Similar laws in other Canadian jurisdictions - which our legislation is being modelled on - don’t seem to be working.
The Federal Accountability Initiative for Reform, or FAIR, is a group that’s been studying the problem. It’s found that the six Canadian provinces with whistleblower legislation have received 170 formal disclosures of wrongdoing, but the offices responsible for investigating complaints haven’t concluded that wrongdoing occurred in a single case.
What’s more, FAIR has never heard of a case in which an employer has been penalized for firing or otherwise punishing an employee who spoke out.
As FAIR’s executive director, David Hutton, recently told the News, “it just becomes a black hole where whistleblowers go and their allegations die, and they die with them.”
It’s a bit troubling that our MLAs didn’t express similar objections when they created a select committee to study whistleblowing legislation. If our government wants to produce a law that doesn’t replicate the same flaws found in the provinces, it would make sense to tap Hutton’s group for advice.
Maybe Yukon could also learn from the Australian experience. Some jurisdictions in that country offer wider protections to employees who go public with their concerns when internal systems are not working for them.
That’s important, because such threats put pressure on organizations to actually deal with complaints.
In the meantime, officials aware of wrongdoing within government who want to keep their jobs would probably be smart to avoid the heroics of shouting from the rooftops what they know, and instead discreetly leak information to news outlets in such a way that won’t see them being outed to their employer. This newspaper, for one, always welcomes unmarked manilla envelopes.