Whistleblower protections watered down yet again in new Bill

Michael Macaulay
Professor of Public Administration, VUW

Michael Macaulay

On March 8th the Protected Disclosures Bill was debated in Parliament by the Committee of the whole House, on its way to its third reading. The new Bill updates existing legislation and offers very small incremental changes.

The government rejected an amendment that would have offered ‘active support’ to anybody coming forward to report an issue. The amendment, presented by the Green Party’s Jan Logie would have been the most radical element of the new legislation and it was very far from radical to begin with.  For transparency’s sake, I assisted with the drafting of that amendment.

The government’s decision goes against everything that is known about the effectiveness of whistleblowing, including the evidence from the Public Service Commission (PSC) and the Ombudsman’s own research. More importantly it goes against simple human decency and leaves those who wish to report a disclosure as vulnerable as ever.

Between 2015 and 2018 both the PSC and the Ombudsman were partners to a pan Aus-NZ research project that remains the largest of its kind yet undertaken. It looked at whistleblowing across multiple sectors (public, private, Not for Profit (NFP)) as well as across jurisdictions. The research showed as conclusively as possible what works and what does not.

The government has chosen to stick with the latter.

Logie’s amendment would have placed an obligation on employers to provide risk assessments to reporters for any allegation that moves forward, as well as ongoing support for their wellbeing. These actions have been shown to be highly effective in minimising stress on reporters and crucially, it also improves outcomes for organisations themselves.

The amendment followed the recommendations from that research project, but also addressed a key issue in New Zealand that has been identified throughout decades: when problems arise people frequently don’t know who to turn to, or if they do, they do not trust the processes that follow. The amendment would have helped make it clear where to turn and developed that much-needed trust.

It was rejected by Minister Chris Hipkins for being too onerous on small agencies, particularly in the NFP sector, a specious argument that echoes previous governments’ rejection of legislation around integrity and transparency. It is also patently easy to work through. But it was a self-fulfilling excuse because from the earliest incarnation of the Bill, the government flat-out rejected external oversight methods that could have been used to overcome the issues of internal capability and capacity. In denying that pathway from the outset, the government created this ready-made loophole for later.

In rejecting the obligation to actively support reporters the government once again keeps the onus on  individuals to come forward. It reinforces institutional power and privilege. It offers classic perverse incentives and adds nothing to alleviate the stress and strain people are under.

In short it is a short-sighted decision. It is the wrong decision. And it will be shown to be both, as more cases emerge and people suffer. Even if we put all the evidence to one side, let us hope common decency prevails sooner rather than later.

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