As part of our UNCAC Submission preparation TINZ submitted an Official Information Act request to the Ombudsman to look at the impact of the Protected Disclosures (Protection of Whistleblowers) Act 2022.
We asked the Ombudsman how many protected disclosures they had received since 13 May 2022 which related to wrongdoing in public sector agencies, and if that had increased year by year? We asked about the nature of these disclosures (e.g. conflict of interest, bullying). And we asked if there is anything that could be said about features of public agencies where protected disclosures are more likely to occur (e.g. size of organisation, public facing, local government?)
Are protected disclosures increasing?
The Ombudsman has received 586 disclosures and enquiries since 13 May 2022. These relate to both the public sector and private sector/NGOs. (While the Ombudsman does not generally have jurisdiction to investigate the private sector/NGOs, they receive protected disclosures and enquiries about the private sector/NGOs, and in those cases can provide advice or refer a disclosure to another appropriate authority.)
The Ombudsman has reported an increase in protected disclosures and enquiries received since 13 May 2022.
The Annual report for 1 July 2023 – 30 June 2024, includes the following (except the 2024/25 unverified figure):
Professor Michael Macaulay (Professor of Public Administration, School of Government at Te Herenga - Victoria University) points out that the increasing overall numbers appear to be due to increased numbers of queries rather than protected disclosures. Not all prior year data distinguished between actual protected disclosures and enquiries for advice.
There is data for 2022/23 where of the 128 above, 85 were protected disclosures and 43 were pieces of advice, and for 2023/24 where of the 206 above, 147 were pieces of advice and 59 were protected disclosures. It seems apparent that organisations/individuals are seeking more advice from the Ombudsman about making a protected disclosure or about responding to a protected disclosure. That is a good thing.
The nature of disclosures
The former Chief Ombudsman included the following statement in the 2023/24 Annual Report, which speaks to the general themes:
“A number of common themes relating to serious wrongdoing are emerging in disclosures to me, including financial mismanagement, unsafe work practices, sexual harassment and a lack of organisational response to sexual harassment”.
Which agencies seem more vulnerable?
The 2023/24 Annual Report from the Ombudsman included the following table:
How many times has the Ombudsman advised public sector agencies relating to individual instances of protected disclosures?
Reply:
The Ombudsman is unable to provide a specific breakdown in protected disclosure data. However, what we can confirm is the Ombudsman has provided guidance to public sector agencies 29 times since 13 May 2022, which includes advice that is generic in nature or pertains to an individual instance of a protected disclosure.
In addition, as you might already be aware, the Ombudsman produces and regularly updates guidance for individuals, Ministers and public agencies on the PDA. These guides can be accessed on the Ombudsman’s website. For example:
- Guide for Disclosure
- Guide for Ministers, (who have a special role under the Act
- Guide for potential whistleblowers, and a checklist
Guides or organisations receiving disclosures:
- Making a protected disclosure - a guide to "blowing the whistle"
- Protected disclosures guidance internal policies and procedures
- Checklist: Protecting whistleblower confidentiality
It is good that the Ombudsman has been receiving queries from private organisations. One gap in the current legislation is that the Act places obligations solely on public sector organisations. They do not apply to private or not-for-profit organisations, even though the Protected Disclosures Act is cross-sectoral in other respects.
A further gap in the Act is that a discloser loses all protections by going to the media.
