Timely reform of whistle-blowing law
There is a certain glamour that attaches to being a whistleblower. People like Chelsea Manning, Edward Snowden and Julian Assange have contributed to a public perception that those who stand up against the rich and powerful are to be admired.
However, there are often consequences for these people, ranging from dismissal to allegations of espionage.
In New Zealand, the Protected Disclosures Act seeks to strike a balance between encouraging people to come forward with information about serious wrongdoing and providing them with protection, but also ensuring this occurs in a controlled and appropriate way.
Unfortunately, since the act was originally introduced in 2000, there have been numerous instances of employees assuming they would receive protection under the legislation, but then failing to meet the qualifying criteria. Others have taken advantage of what they perceive to be the protections under the act to make baseless and outrageous claims against other employees or their employer.
So, the Government’s review of the legislation is timely.
The proposed changes are designed to address the apparent confusion about how to make a protected disclosure. The changes include making it easier for people to report serious wrongdoing to an independent body, creating a central point of contact for advice on when and how to use the act, and ensuring organisations have good processes in place for making a protected disclosure.
Under the current regime, making a protected disclosure is not straightforward. The starting point is that the act applies only to information about ‘‘serious wrongdoing’’ within an organisation.
In addition, the discloser must reasonably believe that the information is true or likely to be true and wish to have that wrongdoing investigated.
Serious wrongdoing is tightly defined and includes, amongst other things, unlawful, corrupt or irregular use of funds or conduct that constitutes a serious risk to public health or safety.
Serious means serious. This means that complaints of bullying or unreasonable treatment are unlikely to be covered.
The other important aspect is that a very specific process must be followed. In most instances the head of the organisation will be the nominated ‘‘appropriate authority’’, or disclosure may be made to another appropriate agency if that person is somehow implicated in the claims.
However, copying the disclosure to multiple people, including the media and Members of Parliament, is not an option.
Another typical misconception is the assumption of anonymity. If an accused person might be prejudiced by not knowing who made the claims against them, the identity can be disclosed. This is an area where Parliament could clarify the law.
At the heart of the regime is the protection afforded to employees who make a protected disclosure, to ensure an employer cannot retaliate. If they do, the employee is able to raise a personal grievance or bring action under the Human Rights Act.
This protection is fundamental to the act, as making a protected disclosure often involves an employee blowing the whistle on senior managers or people in positions of power who can make decisions affecting their employment.
However, the flip side of this is that if employees fail to follow the strict reporting rules in the act, or use it to make claims that may not be in good faith, they can suffer consequences.
What is obvious is that changes to the Protected Disclosures Act need to be made to ensure that employees are clear about what amounts to a protected disclosure and how they should go about making one. Parliament also needs to ensure that the regime provides adequate protection for disclosers who follow the appropriate process, but does not encourage or allow employees to otherwise breach their obligations by spreading sensitive and confidential information far and wide.