Law failing to protect those who speak up

It’s hard at the best of times for workers to speak up against wrongdoing in their organisation, especially when it involves the boss. Fear of retribution is often well justified. Whistleblowers who go public can face intimidating counter-attacks, questioning their motives and their own conduct at work. If the staff member leaves to work somewhere else, the stigma can follow as many employers tend to see whistleblowers — even vindicated ones — as potential troublemakers.

It has also become clear in the past year that the Protected Disclosures Act, which is supposed to protect whistleblowers, is not working properly. State Services Minister Chris Hipkins announced a review in February after a senior Ministry of Transport manager, Joanne Harrison, was convicted of stealing $726,000 from the ministry. Three workers who had raised concerns lost their jobs in a restructure she was involved in.

Cases like this have prompted insolvency forensic investigator Dennis Parsons to warn staff against speaking out because the risk of exposure is too high. He has suggested creating complaints officers with investigative powers within workplaces, arguing that it could have stopped problems such as the sexual harassment scandal at law firm Russell McVeagh. However, this approach seems problematic as most complaints officers would struggle to maintain their independence and could be resented by colleagues.

Now confidentiality is under attack on a different front by lawyers acting for Nigel Murray, the former chief executive of the Waikato District Health Board. Murray resigned in October ahead of the findings of a district health board report into his spending, which has still not been publicly released. In March a State Services Commission inquiry into Murray’s $218,000 worth of expenses over three years found $120,000 was unauthorised or unjustified. The Serious Fraud Office is investigating.

The State Services Commission inquiry used information from district health board staff, who spoke anonymously on the condition that their conversations were to be used only for the investigation. Lawyers acting for Murray have requested the statements of all 12 witnesses, arguing that Murray is entitled to see them and that the investigator’s decision to take confidential statements breached his right to a fair investigation. They have appealed to the Privacy Commissioner, who has not yet made a decision.

There is a fine balance to be struck in cases like this. As Murray’s legal team argues, everyone should have the right to face their accusers and test their claims, in court. But this principle is less convincing when investigators have used confidential sources to lead them to information which can be independently verified and used to build a case of overspending, as the State Services Commission did in Murray’s case. In practice it can be difficult to separate the findings from the original allegations, so the defence will always look for evidence of a witch hunt. But there is a greater danger that if staff know their names could be made public, they may be scared into silence.