Protected Disclosures Act review 2018

Julie Haggie
TINZ CEO

Julie Haggie
Chief Executive Officer TINZ

The State Services Commission (SSC) is conducting a review of the Protected Disclosures Act 2000.  It has sought public feedback on five options for change to encourage all New Zealanders to share their views on the benefits and risks of different proposals.

The consultation closes on 16 December. Be heard, take time now to make a submission!

Transparency International New Zealand (TINZ)’s submission was prepared with input and oversight by experts in the field. They include Professor Michael Macaulay, a core member of the Whistling while they Work 2 research team, Debbie Gee who researched the Ministry of Transport case, as well as Suzanne Snively and Brendon Wilson.

TINZ general response

In summary, TINZ supports strengthening of, and improved clarity in, the Protected Disclosures Act.  We support a focus on encouraging open organisational cultures and on early risk assessment.  Both have been shown to encourage more ‘speaking up’ and more responsible behaviour by organisations. 

TINZ supports the inclusion of both private and not for profit (NFP) sectors in the legislation. While exemptions create loopholes, there is a case for micro-sized, community, NFP and voluntary organisations to be exempt. However, exemptions should not cover organisations in higher risk areas such as information security – nor those organisations with small staff numbers but which manage substantial sums of public or private money. 

The evidence clearly shows that the majority of individuals who ‘report’ under the existing legislation, experience negative repercussions. These often include collateral effects such as anxiety and stress. 

Key components within an organisation to mitigate negative repercussions are shown to be:

  • early response
  • early risk assessment
  • organisational awareness
  • good training, and crucially
  • leadership and management.

Specific aspects

In recognition of the unique relationship between the Crown and Maori under the Treaty of Waitangi, TINZ strongly recommends specific negotiation with Maori. This would improve understandings of:

  • how legislative changes may impact on and interact with tikanga and Te Ao Maori, and
  • identify whether ‘serious wrongdoing’ ought to include activities  which have a serious impact on Treaty relationships.

SSC’s discussion documents propose firming-up the definition of ‘wrongdoing’.  However we note that ‘serious wrongdoing’ is not always initially apparent, as was shown in the Ministry of Transport fraud case.  TINZ asks whether the considered changes will support the ability of organisations to initially recognise red flags that may lead to discovery of serious misconduct?   

TINZ also asks if there a case for an offence of ‘Misconduct in Public Office’ to address misuse of power in public office, that can manifest in many forms including bullying and harassment?   TINZ also refers SSC to the European Commission’s recommendations around reporting, including for media and in specific areas of high interest.

TINZ considers that it is neither desirable nor necessary to require monitoring across the private sector, at least initially.  The compliance load would be counter-productive to the goal of supporting active organisational leadership and culture change.  Similarly we do not support at the introductory stage, any penalty for non-compliance with monitoring or implementation.  Ideally, greater knowledge of the significant role that reporting channels can play in protecting organisations should motivate employers to adopt stronger and more effective channels.

Optimism

TINZ applauds the process for improving the Protected Disclosures Act. We are optimistic of organization cultures where disclosures are less necessary and, when required, are less punitive to the individual reporter.