Fri Apr 9

Workplace whistleblowers deserve more protection than NZ's new law will deliver

Written by Michael Macaulay, Professor of Public Administration, Te Herenga Waka — Victoria University of Wellington

Following a number of high-profile inquiries into workplace misconduct — including within parliament, the police and fire service — it became clear people who report such behaviour in the first place need greater legal protection ^[1].

The commonly used term “whistleblower” is simplistic and emotive, but it remains true that speaking up can cause enormous emotional strain, as well as legitimate fear of retaliation or reprisal.

Unfortunately, based on the recently released report ^[2] from the Education and Workforce Select Committee on the Protected Disclosures (Protection of Whistleblowers) Bill ^[3], attempts to strengthen the current law do not look promising.

While the report does recommend ways to strengthen the bill, it fails to endorse some of the more far-reaching suggestions from a public consultation process earlier this year.

The bill itself is partly a response to the case of Joanne Harrison ^[4], jailed in 2017 for defrauding the Ministry of Transport of over NZ$700,000.

Colleagues who had reported their suspicions about her behaviour later lost their own jobs. And while a subsequent inquiry concluded this wasn’t a direct result of their reporting, they were still paid undisclosed sums in compensation ^[5].

If nothing else, however, the case forced the issue of reporting workplace misconduct into the open.

It is a shame, therefore, that the select committee report doesn’t go further towards creating a more robust piece of legislation, one that significantly increases the protections for people reporting misconduct.

Not enough protection

In the past few years Aotearoa New Zealand has been at the centre of research into workplace misconduct and organisational reporting. This has included our own research project ^[6], the biggest of its kind across public, private and not-for-profit sectors in New Zealand and Australia.

This was more than just an academic exercise. We partnered with the Public Service Commission and Ombudsman in New Zealand, as well as numerous central, state and local agencies in Australia. We investigated who comes forward with reports, what happens to those reports, what support people needed and received, and what processes achieve the most positive results for reporters and organisations.

Largely because of this research we can say with confidence that, despite some strengths, this bill does not go far enough to protect people who speak up.

To be fair, it does clarify how people can be expected to report their concerns, and when they qualify for a protected disclosure. The select committee’s recommendations also appear more respectful towards [tikanga Māori]organisations(https://maoridictionary.co.nz/search?keywords=tikanga) and alternative processes.

But the proposed bill still lacks clarity in its definitions of what constitutes “serious wrongdoing” and the actions or omissions that pose a “serious risk”.

Determining just how “serious” something is might be difficult for someone wishing to make a protected disclosure. The final legislation should offer specific examples in a schedule to its main provisions.

A best practice checklist

The select committee report also proposes section 12 of the bill, covering what should happen when an allegation is reported, be flagged as “guidance” only. At the same time, section 26 of the proposed bill requires all agencies to have internal processes for reporting that correspond to section 12.

But if section 12 is now a guide rather than a full legal requirement, there is a potential loophole: an organisation could argue its systems relate only to this guidance, rather than concrete legal obligations.

Even more importantly, section 26 ignores years of research into good practice for internal reporting. The bill makes no statements about what kinds of processes are required, even though these are well understood and were shared with the select committee. At the very least, organisations should have:

dedicated support persons for all people making reports
risk assessment practices (which should also be specified in section 12) to help protect the reporter and ensure natural justice
appropriate triage for reports so they are processed fairly and efficiently
consistent investigative protocols
a communication strategy that helps build transparency and accountability: how many reports have been offered, what have they been about, how many have led to investigations, and so on
mandatory education and training for all staff
an appropriate and transparent remediation strategy so people are not only protected, but may be rewarded for identifying serious misconduct in the workplace.

Firmer foundations needed

The Green Party, which supported a number of these provisions, also proposes another major improvement: an independent body to oversee the new regime.

This need not necessarily be an investigatory body. It could provide strategic direction, promote good practice, develop consistent training and development for organisations, act as a store of information, and collate and publish data.

It may, under certain circumstances, take on an investigative role to protect independence and mitigate possible conflicts of interest in internal processes.

Similar bodies worked in English and Welsh local government, where a national oversight body was established to end the kind of serious corruption and fraud scandals prevalent in the 1980s and 1990s.

Since the agency was abolished by the Conservative-led coalition government in 2014 we’ve seen more scandals, including a massive corruption case ^[10] in Liverpool right now.

It’s clear people who want to report misconduct need better protection. And while legislation cannot be the only solution, it acts as a foundation for organisational and cultural change.

The current Protected Disclosure Bill, even following the select committee’s report, does not yet provide that firm foundation.