Protected Disclosures (Protection of Whistleblowers) Bill

I move, That the Protected Disclosures (Protection of Whistleblowers) Bill be now read a third time.

Once again, I want to thank the select committee for their deliberations on the bill and thank all of those who took the time to make submissions. This is the first of what will probably be two bills.

ASSISTANT SPEAKER (Hon Jenny Salesa): Point of order, Minister. One moment, please. Does the Minister want to present a legislative statement?

No, Madam Speaker; the legislative statement was presented on the earlier readings.

ASSISTANT SPEAKER (Hon Jenny Salesa): Thank you. The Minister may continue.

Once again, I’d like to acknowledge the contribution of the members of the select committee and, perhaps, review the fact that this is the first of what I’m sure will be probably two bills—another one further down the track to deal with some of the issues that were unable to be captured by this one.

When we started to look at the Protected Disclosures Act 2000, it was, of course, a significant piece of legislation at the time, but it became very clear that the Act was not operating as it was intended. People didn’t understand it, and they were not using it. People were afraid to make protected disclosures, because it had become such a difficult to understand process that it did not give them the confidence that it was designed to give them that they would be protected in the event that they disclosed wrongdoing.

This bill does a couple of things. First of all, it simplifies the existing legislation so that it’s easier to understand and it makes some changes to them. The first thing the bill does is clarify the key elements of the existing protected disclosures regime that will continue in the new legislation. I’ll run through those quickly. A protected disclosure has three key ingredients: a discloser who believes that they have identified serious wrongdoing in their organisation and discloses it, not in bad faith, within their organisation or to an appropriate authority. Disclosers are people who are in a position to see serious wrongdoing in an organisation because they work there or have previously worked there, and they need protection in disclosing that serious wrongdoing to someone who can do something about it because the organisation or the perpetrator of the wrongdoing is in a position in order to be able to retaliate.

The protections that the legislation provides are the confidentiality around who has made the disclosure, immunity from disciplinary action in making the disclosure, and protections from retaliation under the Employment Relations Act and the Human Rights Act. The receiver of a disclosure needs to play their part by maintaining confidentiality, investigating or referring the disclosure, and informing the discloser what they have done about it.

The main changes that the bill makes are the removal of all of the gates and hurdles that have previously prevented or discouraged disclosers from getting their concern in front of an appropriate external authority, requiring public sector organisations to specify in their internal procedures how they’re going to support disclosers, adding to the definition of “serious wrongdoing” the misuse of public funds or authority by non - public sector organisations and the serious risk to the health and safety of any individual, improving protection of disclosers by enabling them to complain to the Privacy Commissioner if the requirement to protect their confidentiality has been breached, and removing the restrictions on the protection of those who disclose supporting information.

That’s, effectively, what the bill does. To turn the House’s attention, though, to some of the issues that people raised that the bill doesn’t necessarily fully address, this bill is predominantly focused on changes in so far as the protected disclosures regime relates to the public sector—in the broadest possible definition of the phrase “public sector”. It does not look at the private sector; more work is required there, and, if there are going to be further changes, then potentially a subsequent piece of legislation can bring those changes before the House.

I was very mindful in making decisions on this legislation that the potential to add significant, potentially additional compliance costs for small businesses, for example, could be significant if we didn’t work our way through that carefully to fully understand the implications of that. This bill does not lean on those topics; it looks at the broader public sector rather than looking at the private sector, although, as I’ve indicated in my introductory remarks, it does afford some protection for disclosures where the use of public money is involved by other organisations, private sector companies, or non-governmental organisations.

The Government, and indeed, I think—from the comments that we’ve heard around the House—the House as a whole, is committed to protecting New Zealanders who speak up about serious wrongdoing; I think that that’s really important. New Zealand is internationally recognised as one of the least corrupt countries in the world; that’s something that we should all be proud of, but it is nothing to be complacent about. In order to maintain that status, we have to constantly be looking for areas where we can continue to improve. The disclosure of wrongdoing and protecting those who blow the whistle is one of the ways that we can safeguard our standing as a country.

💬 Hon Mark Mitchell: “Chippie”, can I meet with the commissioner? That would be a good start.

Well, that’s a parliamentary matter; it’s not a matter for me as a Minister.

Ensuring that people can make protected disclosures with confidence is one of the ways that we can safeguard our reputation as one of those countries that suffers from the least corruption in the world. I commend the bill to the House.

Thank you, Madam Speaker—I’d better take my mask off here, actually—for the opportunity—

💬 Hon Chris Hipkins: Put it back on!

Oh, you want me to put the mask back on? I’ll put the mask—

💬 Simon O’Connor: Actually, strictly that would have been a protected disclosure.

That would have been a protected disclosure, as my colleague Simon O’ Connor says. But it is a pleasure to take a call on the Protected Disclosures (Protection of Whistleblowers) Bill at the third reading, which the National Party will be supporting.

The context of this debate, following a very rousing speech by Greg O’Connor, which I do think was actually in the context of a protected disclosure, telling us a very interesting story about some dealings with someone who was dealing cocaine—I couldn’t quite understand exactly the context of the story, but I’m not sure if this was the actual place where that sort of protected disclosure should have actually been lodged here in the House. I’m not quite sure if the member was aware this is open, being transmitted across New Zealand, and people are able to listen in. So I’m not quite sure if that was exactly what he was trying to do, but a very interesting speech, nevertheless.

But back to the bill. The National Party will be supporting this piece of legislation. I think that, as the Minister has rightly acknowledged, making sure that we have procedures in place to ensure that people who are aware of issues around corruption, safety, or criminal activity have opportunities to be able to report and to ensure that they are able to bring that information to the attention of those who need to know, but also to be protected in that way, in terms of when they are actually making those disclosures so that there is no repercussions back on them—that is a critical part of a functioning democracy, particularly in the public sector. So the National Party, of course, will be supporting this piece of legislation, which will allow that process to not only be continued but also to be able to be refined as New Zealand continues to try to make sure that our legislation protects these people and protects that information.

Whistleblowers serve the public interest by exposing a range of things like unethical practices, threats to public health or safety, and criminal activity—and that is something which is incredibly effective, particularly when it comes to making sure that we reduce corruption or corrupt behaviour is brought to light in an organisation, and that’s something which, I think, from the taxpayers’ perspective, is critically important. Taxpayers want to ensure that Public Service organisations, the public sector is working for them and is making sure that they are effectively responding to those concerns which are raised within those organisations. So having this piece of legislation allows for a very clear process for these complaints, these disclosures, to be made, for people to be able to come forward without having to risk their reputation or negative repercussions which may easily come upon them, and also for the particular organisations to have a very clear process which they then have to follow, which is set out very clearly in the legislation. And so I think it’s a very, very good piece of legislation.

I acknowledge the select committee, which has diligently worked on this particular bill and has made recommendations; the submitters, who, of course, have submitted on this piece of legislation; and I do note there has been a number of points made through that process, which I think are important to touch on. The Minister has touched on the issue around the private sector, and I do think it’s important to put on the record that there is, of course, implications that this bill will have where public money is involved. But, at the same time, it is important that the Government is not imposing significant regulation and costs on to businesses, particularly small businesses if they would also be included in this regime. And so whilst it’s important, of course, for private sector businesses to be considering how they can support and ensure their staff are able to bring forward complaints or issues of these natures, particularly, I think, larger businesses, Government also needs to consider the cost that policies like this would have if they were put in place for the private sector at large. And so I do think this bill does get the balance right on that particular point.

💬 Hon David Bennett: What about Greg O’Connor?

Well, I’ve already touched on Greg O’Connor, David Bennett, in terms of this is not quite the place for a protected disclosure in Parliament—Parliament is not quite the place. The bill makes it very clear that there is a confidential process whereby protected disclosures can and should be made. But I would not suggest that someone like Greg O’Connor should be making those particular disclosures in Parliament, because, of course, Parliament is open, it’s on the radio, it’s on the TV, and you can watch it on demand, and the Hansard will even be printing it. So what is said here will be on the record for ever. And so whilst, of course, we’re very interested in what Greg Connor has to say, Mr Bennett, I don’t think it’s—

💬 Maureen Pugh: Not everyone.

Well, not everyone; we’re interested to a certain degree would probably be a better point, Maureen Pugh. But I wouldn’t say everyone’s incredibly interested, but it’s on the record. So I guess the point I’m trying to say—

💬 Hon David Bennett: What did he say?

Well, I’ve already covered that too, Mr Bennett. But back to the points I was trying to make. The final point I would like to make is that there is, of course, an issue around these types of regimes to ensure that there is a threshold at which complaints have to be met—the risk being that we don’t want to see vexatious or litigious complaints where people constantly are trying to bring complaints forward and just chewing up time. So I do think the definition or meaning of “serious wrongdoing” does strike that balance right where, of course, serious wrongdoing includes something which is an offence, a serious risk to public health, public safety, health or safety of an individual, the environment—[Interruption] Well, Simon Watts, I mean, it could be. I mean, spending $51 million on a cycle bridge which didn’t go ahead. You know, I’m not sure that’s quite an unlawful or corrupt or irregular use of public funds. I mean, potentially. But I would just say it’s important that there is a high threshold, is the point I was trying to make, Mr Watts, in that we want to make sure that we’re not having vexatious or litigious complaints coming through. There has to be a high threshold in regards to these complaints. So, whilst I wouldn’t give you any advice here on the fly around whether you would want to report that or not, Mr Watts, the point is that there does need to be a high threshold around these particular wrongdoings.

So I do think the bill has got that balance right. The National Party supports this bill. We do want to ensure that our public sector maintains the highest ethical standards, that there are good processes in place for people who make these complaints, and that they are dealt with in the most careful and confidential ways, and that those people do not risk their reputation or negative repercussions from that. And so the National Party is supportive of this bill and we commend it to the House.

Thank you, Madam Speaker, for the chance to take a call here in this third reading debate of the Protected Disclosures (Protection of Whistleblowers) Bill. Now, I just noticed that Mr Brown went to great lengths to get all his colleagues put in the Hansard tonight. I’m not really sure why he did so, Mr Bennett, but, Mrs Roberts—if you have any idea? We know exactly who was here at his speech.

So this existing legislation that we are amending was written in 2000 and that, of course, is a little bit overdue now for an overhaul, and that is exactly what this bill is doing at the moment. It’s widely accepted, as we’ve heard in all the speeches in the previous debates, that the current legislation isn’t as accessible or easily understood as was likely meant a couple of decades ago, and the Minister for the Public Service already touched on this in his contribution. New Zealand prides itself on being one of the least corrupt countries in the world, and when it comes to transparency we have a lot to be proud of. But, of course, with this Act being more 20 years old now, it meant that we needed to be catching up to international best practice, so that people know how to use the legislation and, at the same time, they feel safe in doing so; the Minister actually mentioned exactly that. At the moment, the way the legislation is written is that people are afraid to use it, and that is of course not what we’d like them to do.

I’d like to start by thanking our officials and advisers for their work on this bill, and my colleagues on the Education and Workforce Committee, and people from across the House for working very collaboratively. As we’ve heard from the speeches, we came together in the right spirit to address this issue. We received 36 written submissions and we heard from 16 submitters in person, and that included some personal stories which made it really clear that this is an important issue that we are clarifying with this bill.

As a result of the amendments in this piece of legislation, we can be confident that those who are disclosing wrongdoing—and serious wrongdoing, as Mr Brown pointed out—can feel protected in doing so. People can safely go through the process, they will know what the process is, and they also can keep their identity and privacy, which is, of course, really important. We heard some really good examples. I remember my colleague Ingrid Leary speaking on this bill in the second reading, and she mentioned some examples from both the private sector and public sector, in fact, from her experience previously as a journalist.

The Minister spoke about this bill removing the gate and hurdles that have prevented or discouraged disclosers from getting their concern in front of an appropriate external authority. So what this bill will do is it will require public sector organisations to specify in their internal procedures how they will support the disclosers and improve protections for those who are disclosing, and, of course, for those people who take the step of disclosing, it will be a massive change from the current situation.

This bill will clarify the key aspects of the Protected Disclosures Act so that it is clear who can make a disclosure, how it works, and exactly how they will be protected. This legislation, once updated through this bill, will give protection to employees who uncover serious misconduct, fraud, or corruption that they see in or by their organisation. Therefore, I commend it to the House. Thank you.

Thank you, Madam Speaker. It’s a pleasure to take a call on this, the Protected Disclosures (Protection of Whistleblowers) Bill, at the third reading. Although I didn’t sit on the Education and Workforce Committee—so I didn’t hear any of the submissions on this bill—I did take a call, I think, at the second reading, and I just want to reiterate the comments that I made then, in congratulating and acknowledging the Minister—Minister Hipkins—and the work of the select committee.

This is a very good bill, and I just spoke very briefly about my own experience in the private sector, going back to 10 years ago, as part of a very big global logistics organisation, and I was running the compliance programme across 130 countries and 30,000-plus employees. We had a very progressive chairman in Tarek Sultan, and he understood very clearly in an organisation that big, when you’re dealing with multiple Governments and agencies, the responsibility associated with that, but also the risk around bad behaviour and that employees had to have the protection and the ability to be able to report that behaviour without fear of any negative repercussions on them. So we developed a very comprehensive compliance programme that ran globally—and there are some real challenges around that—but it was successful. So I was very pleased to see this bill come to the House.

On a personal level, I think some of the Opposition MPs, in their speeches, have made the point that we lead the world, and especially the OECD, around most targets that relate to transparency and corruption. We should be proud of that as a country and as a Parliament, and we should protect that as much as we can. So it does aggrieve me that, as a member of Her Majesty’s Opposition, recently, through a Minister of the Crown, I requested a meeting with the head of the agency that I’m the spokesperson for. Now, normally in convention, that is a courtesy—to allow the Minister to know that you are seeking a meeting with the head of that agency—but, in this case, it was declined. I have been blocked. And I have to say that my predecessor, Simeon Brown, who made the same request, was granted that meeting.

So, when I look at this bill and I look at the meaning of “serious wrongdoing”, I just wonder whether I could actually make a complaint, because, if you go down to clause 10(e), it’s “oppressive, unlawfully discriminatory, or grossly negligent behaviour,”. And I have to say that it feels pretty oppressive and unlawful as a member of Her Majesty’s Opposition to be blocked from a meeting with the head of an agency—

ASSISTANT SPEAKER (Hon Jenny Salesa): Order! Can I ask the member how that even relates to the whistleblowers bill? Can I just ask the member to just come back to the bill.

I think, how it relates to it, Madam Speaker, is that members on the other side have raised transparency and corruption and the fact that this bill is designed to be able to deal and ensure that we remain the most open and transparent democracy in the world. And so what I am highlighting is that that type of behaviour is neither open nor transparent. So I feel that, should I want to use that avenue that is available, maybe I should be using it. Maybe it actually applies to me as well.

So, anyway, Madam Speaker, I am happy to stand and support the bill, and I’m also happy that you did allow me to make what I feel is a very important point. Thank you.

Thank you, Madam Speaker. It’s a pleasure to be able to speak on this, the third reading of the Protected Disclosures (Protection of Whistleblowers) Bill. As we’ve heard from other speakers, this bill is, in fact, a replacement of the Act that was passed in the year 2000, which, coincidentally, was my last year of high school. So we can all agree that many things have changed since then, but the importance of investigating wrongdoing in workplaces hasn’t. So that’s why these types of protections that are introduced by this very good bill are so important.

This is a very straightforward bill, and that is one of the improvements it offers in relation to the law that’s currently in place. There have been special changes made to this bill to make sure it’s accessible and usable for people so that they can tell whether they’re covered by other protected disclosures legislation, and I would commend a close reading of this bill to the members on the other side of the House. I’m sure that once they go through it, they will clearly see that the example that they were previously referring to is clearly not covered by any section of the bill—most notably, the first one: clause 8.

We’ve heard from other speakers that New Zealand is one of the least corrupt countries in the world, and it’s often recognised by very independent organisations like Transparency International as one of the least corrupt countries in the world, but it’s very important that, as legislators, we don’t just seek to implement new ideas. It’s very important that we also look to existing legislation to make sure it’s achieving the aims and purposes that we seek from that particular piece of legislation.

So I think the select committee process—and I was a member of the Education and Workforce Committee—was particularly important, and a lot of the reflections that submitters brought up have been incorporated into this piece of legislation. I thank the select committee members, my fellow people on the select committee, and also all of the submitters for sharing their expertise with us.

Madam Speaker, this bill is important. It is an improvement on the existing Act, but there is more work to do, as the Minister has said, and I look forward to seeing the work that comes forward. So I won’t take any more of your time, but I would like to commend this bill to the House.

Thank you, Madam Speaker. I rise to offer the Green Party’s disappointed support for the Protected Disclosures (Protection of Whistleblowers) Bill this evening. I want to provide a bit of an introduction for people listening, because when I hear the words “protected disclosure” it doesn’t really mean much to me, and I think I wanted to give some examples about what this is, things that this might cover.

There have been some good movies over recent years covering some of the situations that this can relate to. So there’s the movie Serpico around New York police corruption, accepting pay-offs—that’s a form of corruption where you want a whistleblower to intervene, as they did in that case. The Laundromat, a movie where they’re looking at the Panama Papers and the disclosure around that of money laundering and tax evasion and bribes happening globally that reached right into this country, even, and required somebody to blow the whistle to be able to bring that to light. And then there’s the movie The Insider, looking at the tobacco industry intentionally making their products more addictive and hiding the science from the public—another example where we required a whistleblower to be able to bring an incredibly important public health issue to the public for us to be able to make conscious decisions based on real evidence rather than corporate greed. The very well-known one Erin Brockovich, who uncovered a utility company contaminating ground and into drinking water that was putting huge numbers of lives—600 families, I think—at risk through that corruption—again, required whistle-blowing and really concerted effort to be able to fight the efforts to shut that down. And then, of course, the very well-known example of Edward Snowden exposing illegal spying initiatives and where he is now having to live in Russia, of all places, to feel safe and free from Government interests and retaliation for his whistle-blowing, acting in defence of the rights and liberty of American people. These are some of the international examples we know where whistleblowers have been incredibly important.

What we see in many of those examples is how few people have been brave enough to break out and tell the story that needed to be told and how often the organisations, whether they be Government organisations or corporate organisations, have actually tried to shut them down and punish them for acting in the public’s interest. That is what this piece of legislation is about: giving us as a country a framework to enable people who see wrongdoing to be able to come forward and be confident that they will be heard and that the processes will be followed to explore and ultimately shut down wrongdoing.

We think of current examples that we know of, or recent examples in this country, where Rebecca Macfie has just recently published a book around Pike River, where 29 men died. One of the key findings from her research was that every person who comes to you with information about safety is a whistleblower and deserves to be listened to respectfully, that there was a failure at Pike River to listen to those raising concerns about safety, and that it was against the corporate interests at the time, and 29 men died. We’ve heard recently in the news, even tonight, around the actions of the Australian Defence Force in East Timor, where our soldiers saw behaviour that could have led to a trial for murder ended up in charges around brutalising a corpse that were not able to be progressed because our soldiers were not given the assurances of protection in providing their evidence. Links have been made to the failure to act in what was found in East Timor, leading to further abuses of power and very problematic behaviour happening in Afghanistan.

So these are real life examples that have connections to us as a country, and let alone the example of Joanne Harrison that led to this legislation being reviewed in the first place, where there was fraud happening in the Ministry of Transport, and people tried to bring it to light, and for too long were not successful in doing that. So this legislation is really important; however, it’s disappointing that after years of work, what we’ve come up with is, really, the first baby step towards setting up an effective regime.

And I do need to point out, because of the mention around New Zealand being really proud of our record around transparency and integrity, well, there was an article published on the Transparency International New Zealand website last week, I think, about this piece of legislation that noted that the Government’s decision in terms of limiting this legislation and not supporting the Green Party Supplementary Order Paper (SOP) goes against everything that is known about the effectiveness of whistleblowing, including the evidence of the Public Service Commission and the Ombudsman’s own research that a decision was made by the Government not to support amendments that would have put a system of protection around people whistleblowing, which is the centrally most important thing of having an effective system. We know it from the movies, we know it from our reality, when people come forward, and we have to make sure that they are protected.

This legislation has a penalty for any retaliation taken against somebody, but the evidence we heard in the select committee was that people who have been blowing the whistle in agencies in our country have, as a result of that, experienced years of having their names slandered, losing their jobs, having their reputations destroyed, being out of work, and suffering mentally, understandably, and financially, as well as just their standing in the community for years before they manage to go through the systems to get themselves vindicated and the decisions reversed. You can’t reverse that kind of damage. And if you want to give people the confidence to be able to come forward, you have to give them enough assurances that you have a system in place to protect them proactively from that level of harm. And that SOP was based around a research project that has been happening in this country and was based on best evidence.

And the argument from the Minister that it couldn’t be accepted was, really, “What about the smaller NGOs?” Even though, actually, it was quite a simple and, I would have thought, helpful framework, actually, that would have supported them in this situation, because just not having these protections in place doesn’t mean that they’re not going to have, potentially, people coming forward, and that actually having a framework of how you support somebody would be helpful, but the Minister thought that that would be too onerous.

And I would point to Michael Macaulay’s comments in the Transparency International article, noting that this was a self-fulfilling excuse, because, from the earliest incarnations 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. And what we’ve been told through this process is, “We’ll get to it. Yes, yes, Greens, we recognise the importance of what you’re saying. We’ll acknowledge it’s valid, we’ll get to it sometime.”

But this process has already been going on for four or five years. There’s been every opportunity. And if we care about the integrity of our businesses and our Public Service and our community organisations, then this was a central piece of legislation where we could have really made a difference, and it’s just a bit gutting that the Government took the easy road and didn’t do what we needed.

I rise on behalf of ACT to take a short call in support of the Protected Disclosures (Protection of Whistleblowers) Bill. It’s a bill that replaces the Protected Disclosures Act 2000, which was introduced to address a number of issues that were going on at the time. It wasn’t used very often back then, but probably because it just wasn’t user-friendly enough, and we think that these issues are dealt with in this bill by its providing protection for employees and other workers who have those concerns and who report those concerns.

The bill recognises and clarifies the definition of “serious wrongdoing”, for which the threshold is high, and quite rightly so. There should be no confusion on what is serious wrongdoing and what are those issues that should be dealt with or can be dealt with through the personal grievance process. It adds specific reference to the use of public funds and the serious risk to health and safety of an individual, to show that situations that were raised in the select committee, such as the neglect or abuse of the vulnerable individuals in care, are covered by this bill.

It enables people to report serious wrongdoing directly to an authority, and that authority will know what to do with those complaints. There is much more clarity as to the appropriate authorities and the ability of those authorities to decline or to refer the disclosure.

It strengthens the protection for disclosers by specifying what a receiver of a disclosure should do, including the requirements for protecting the identity of the discloser. It clarifies the protection, as applicable, of supporting disclosers and it is removing the caveat in the current Act restricting protections to those who volunteer the information.

It enables disclosers to make a complaint to the Privacy Commissioner if the confidentiality requirements are breached, and it really clarifies the internal procedure requirements for the public sector organisations so that they have to state they will provide support in the form of practical assistance and advice to those disclosers.

Not everyone is happy, and I read a report just recently about the Green Party amendment, which read, “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 to and develop that much-needed trust.” We feel that this is covered in this bill.

ACT believes this bill does strike a balance that will allow disclosers the security of reporting issues and being confident that they will be dealt with appropriately and that they will be protected from any recourse. There’s a review after five years, which will show up any flaws or unintended consequences, and that can be sorted then. So we support the bill. Thank you.

This debate is interrupted and is set down for resumption next sitting day. The House stands adjourned until 2 p.m. tomorrow. Pō mārie.

The House adjourned at 9.56 p.m.