Whistleblowers with information about misuse of public money should be guaranteed anonymity if they speak to the National Audit Office, the auditor general has said.

The proposal is one of around 10 legislative changes which the NAO believes are necessary for it to better fulfil its duties of overseeing spending of taxpayer funds.

Other proposals include introducing provisions which would require institutions to hand over any documents requested by the NAO as part of its investigations, and giving the auditor general the right to obtain information from any individual or body corporate he or she deems fit.

The NAO submitted its recommendations to the Office of the President, as part of a consultation process about how the Constitution can be reformed.

While Malta already has legislation which protects whistleblowers from being identified, the Whistleblower Act makes no direct reference to NAO disclosures. NAO investigations are not criminal in nature and are intended to bring to light malpractice which is then reported to parliament.

The NAO is currently governed by section 108 of the constitution as well as the 1997 Auditor General and NAO Act.

Forcing entities to cooperate

In its submissions, the NAO noted that entities under investigation sometimes refused to hand over information requested of them, “citing provisions in their enabling legislation that prohibit them from divulging information”.

Adding a sub-article to the Constitution as well as amending the Professional Secrecy Act to exempt NAO requests would solve that, it noted.

The auditor general should also have the right to demand any information required, including “agreements, books, contracts, records, returns, electronic data”.

The power to say 'no'

Another proposal is to introduce a clause allowing the auditor general to disregard a request for an investigation if he or she feels that the subject is “lacking in materiality or represents no risk to public funds”.

Existing laws do not explicitly state that the auditor general can choose not to effect a requested audit.

How the NAO wants Article 108 of the Constitution to change. Scroll right to read through the article.

The proposals also call for the NAO to be given the explicit right to audit all government departments and ministries, as well as individuals using public funds.

“The NAO is presently unable to exercise the right to inquire how public funds were utilised at the beneficiary level,” it notes.

Protecting NAO from libel

Other proposals include protecting the auditor general from libel cases – a former auditor general has been sued before, the NAO notes – and changing the law to ensure there is no risk of the auditor general and deputy auditor general both ending their terms at the same time.

Requiring MPs to consult

The Constitution should also require legislators to consult with the NAO before introducing laws which affect or increase its workload, the NAO said.

“This Office has come across several instances whereby the legislation of certain government authorities or bodies provide the office of the Auditor General with additional tasks. At times, the Auditor General may not even be aware of such responsibilities,” the NAO said.

The proposals, which have been presented to president George Vella, were drafted by an NAO delegation including deputy auditor general Noel Camilleri. Consultation was coordinated by Denise Borg Muscat Amanda Borg while law professor Ian Refalo, the office’s legal consultant, was also consulted. 

Read the NAO report in full in the pdf below.