Protected Disclosures (Protection of Whistleblowers) Bill

Members, we come now to Part 2. This is the debate on clauses 7 to 15: key concepts and what to do. The question is that Part 2 stand part.

Thank you, Madam Chair. I couldn’t resist taking a short call on the key concepts and what to do section of this piece of legislation. I just thought it was very helpful that in clause 7 the bill even includes a flow chart which helps people to understand how to make—

💬 Hon Chris Hipkins: We’re making legislative history.

Yeah, well, I’m not sure. It would be interesting if the Minister could take a call and explain what other legislation he’s aware of that has flow charts in it to try and explain how the piece of legislation actually works. But for people who are needing to whistle-blow or make a disclosure under this piece of legislation, it is very helpful to have a very clear way of knowing how the legislation may work, and also to help people understand whether or not the particular issue that they are keen to raise may or may not actually be protected under this piece of legislation. So I just want to acknowledge the Minister for drawing that on his whiteboard and then putting it together in legislation. I’m really pleased that—

💬 Hon Chris Hipkins: All my own work—all my own work.

All his own work, as he says. I’m sure it was. But I think acknowledgment where it’s due, Minister, for that.

In terms of this particular part, which deals with a number of definitions, clause 10 is probably one of the most significant: the meaning of serious wrongdoing. There have been a couple of changes there, and I do just want to ask the Minister if he could outline why the inclusion of the health and safety of any individual has been included. It would be good to get some further explanation to that. Also, some of the other changes to this particular part have been, I think, relatively minor, but also, just again, they deal with definitional sections around how the particular process goes.

I think that on this side of the House, we in the National Party have, obviously, been through this piece of legislation with the committee. This Supplementary Order Paper and the changes, I think, pretty much respond to the Education and Workforce Committee report and sort of make some good suggested changes. There’s nothing too radical from our perspective, and so, I guess, from my perspective, it’s good to get this piece of legislation progressed as quickly as possible, as it makes this very important reform to the public sector to ensure that people who do whistle-blow have a very clear framework and a very clear process as to how they can do that under the legislation. Thank you, Madam Chair.

Thank you. I rise to take a call in the committee stage and, before I get to questions for the Minister, I just want to preface my comments by acknowledging how important this piece of legislation is. Whistleblowers play an essential role in exposing corruption, fraud, mismanagement, and other wrongdoing that threaten public health and safety, financial integrity, human rights, the environment, and the rule of law.

We heard through the select committee process and we’ve, unfortunately, seen in some rare but public cases where people who have attempted to blow the whistle, or have, have suffered really quite dire consequences. I think, the very origins of the work on this bill started in 2016 in response to the Joanne Harrison fraud case within the Ministry of Transport, where people who had attempted to raise the alarm had been restructured and suffered hurt and humiliation, as was reported. We heard again and again through the select committee just terrible stories of people’s lives being, basically, destroyed and going through the system to get recognition that they were right and then trying to get repair, and that that delay to justice actually failed them.

So this piece of legislation is the first step in trying to get a rigorous system, because what we’ve had to acknowledge is that our existing system is not up to the job. I do acknowledge what the Minister said in his introductory remarks about there being wider issues and more work to be done. I want to register at this stage my frustration that this policy work has been going on for about four years. Consultation on this happened in 2018. So there is some real disappointment for people who are paying attention to our integrity systems that this bill is such a “once over lightly”. And I also want to register my disappointment that, while I will be supporting the Government’s Supplementary Order Paper (SOP) 131, actually quite a few issues that were raised by the Education and Workforce Committee for work to be done on the SOP have not been addressed in it.

I also want to note in this part of the bill, specifically where there has been a change to the definition of “serious wrongdoing”, and this is something we spent a lot of time on in the committee, because, on the existing definition of serious wrongdoing, we were given plenty of evidence that it was treated as a very high threshold, which meant that people actually were not given the protections they needed to be able to follow the process. They weren’t able to access the protected disclosures process because of how high a level people were interpreting a “serious wrongdoing”.

So this SOP makes a very important amendment of adding to explicitly include behaviour that is a serious risk to the health or safety of any individual. We believe that is progress. However, the submission from Michael Macaulay, who is recognised as an international expert in this area, who’s in our very own School of Government, and the PSA—their recommendation was that there were explicit examples to be included in the legislation, because this is an incredibly important part of the process and if we don’t get it right, if people set that threshold too high, then we undermine the entire Act and people aren’t given that pathway to disclose. So we would like to have seen those examples put into legislation to give more of a sense how this can be used in practice. But I do want to say that I very clearly interpret “serious risk to health and safety of any individual” to include instances of sexual harassment and bullying, which was again and again raised and is one of those kind of warnings for much-greater potential for corruption and wrongdoing, and we have to get that stuff right.

There was a suggestion that it be a failure for an organisation to respond appropriately to that so that it didn’t undermine the personal grievance process. But I’m interested in hearing from the Minister about why we haven’t got that process.

Can I acknowledge much of what the member Jan Logie has just said and say that I have a lot of sympathy for the arguments that she’s put forward. If we rewind back to when this particular process started, we could have taken the attitude of saying “Let’s do everything. Let’s do it all thoroughly.”, but it would have taken longer, and I made the decision to separate that into two parts, recognising that the Act as it stood, and as it stands as of today, was not being used, because those thresholds were too high, and progress some changes that could be done relatively quickly and then have a second stage where we could look at some of those more complex issues.

If I take some of those issues that the member has referred to, there is often an interaction between this legislation and other pieces of legislation, including workplace legislation, including the Crimes Act—you know, various other pieces of legislation—and it takes a bit more time to really kind of get into that and not get it wrong and make sure that it’s done correctly. And I do think we need to take the time to do that.

Now, in an ideal world where we haven’t had such a disruptive 24 months or so, we might be debating the second of the bills, rather than the first one. That’s not the way things have unfolded. This legislation has been pushed down the priority order, the pecking order, because of COVID-19 - related disruption. It is important that we now get this legislation passed, but it is also important that we do continue on the work. And the issues that the member has raised, I think do need further consideration, and, that is, we will have the opportunity to do that as we go through implementing this change and, alongside implementing this change, considering some of those other issues.

Our capacity to do all of that work all at once is not unlimited. We do have to make some trade-offs and choices and I did—you know, I’ll be completely frank—make the decision and make the choice that we should try and progress some of the things that might make the Act more accessible and more usable and more used more quickly and then, of course, continue the work on some of those bigger and more complex challenges.

Thank you very much, Madam Chair. On this part, as in the first part, I don’t have very much to contribute—some members might ungenerously say that’s always the case, but I don’t even intend to take very long doing it. For what it’s worth, I just hesitate to interrupt a difference of opinion between Labour and Greens; a bit like State of Origin rugby league, you sort of almost hope that they both lose! But, actually, I do have some sympathy with where the Minister’s landed on that, as compared with the more ambitious approach. And I do understand the point that our Green colleague Jan Logie has made but I think it would be an error to make a perfect enemy of the good, and the legislation is worthwhile as far as it goes. So it would be helpful, I think, for us to pass this piece of law and then it may be that there are lessons to be learnt out of its operation that could be applied to the second of two such bills, applying maybe more broadly and certainly into that private sector realm.

My questions in relation to Part 2 are just to ensure that I understand—for my own sake, truth be told, but also for the sake of the record, I think it might be helpful in future for those wanting to understand the scope of the bill, as the Minister and therefore the Government intends, in relation to the idea of serious wrongdoing. So we’ve got a number of different kinds of behaviour that are characterised as serious wrongdoing, and that’s in clause 10. One is a serious risk to public health or public safety. I just want to test with the Minister the idea that that shouldn’t preclude individual health or safety as being effectively protected, and I understand that that’s covered elsewhere in the bill.

And also just to sort of get into the notion of a right to a fair trial. So the context is that—[Clears throat] ‘scuse me; probably COVID!—serious wrongdoing includes any act or omission that is one or more of the following, and one of those is “a serious risk to the maintenance of law, including … the right to a fair trial”. I just want to put on record that I think it would be helpful for us to understand that the right to a fair hearing at a tribunal would be considered as falling under that definition of a right to a fair trial. Often, at times, we will talk about “trial” in the context of courts, as opposed to tribunals, and specifically in the criminal realm, but, I think, for a person to have the opportunity to seek justice more generally, it would be helpful and perhaps the idea that—my proposal, at least, is that the right to a fair trial not be construed in too narrow a fashion as to preclude those other ways that a person can come in front of a decision maker to seek justice.

The other aspect to my question—I’ll just see if I can fit them in effectively in the same contribution—is about the acknowledgment that is made with the discloser’s entitlement to protection. This is clause 11. This really goes to the heart of the purpose of the legislation. Of course, we’re talking about protecting disclosures and protecting disclosers—those who blow the whistle and also the whole idea of protecting for the sake of the system or the community, more generally—the pointing out of wrongdoing or bad behaviour and so forth. So in subclause (4) of clause 11, we’ve got the note there that the “discloser is entitled to protection even if … they are mistaken and there is no serious wrongdoing”. I just want to highlight that I think it’s important for everyone to understand that a person can blow the whistle, thinking that they are doing the right thing and that they’re pointing out some great flaw that might cost life or limb, and I think I’m right in saying that if they do that with a reasonable or an honest belief that there is serious wrongdoing, notwithstanding that they’re mistaken, then that would protect them from the consequence of otherwise mistakenly blowing the whistle, be that in relation to defamation or a breach of contractual obligation to maintain confidence and so on.

So those were my questions/comments, and any response that the Minister may have, as always, will be gratefully received.

Very briefly: I think, in terms of the right to a fair trial, I’d expect that that’s interpreted in a broad sense rather than a narrow sense of just the courts.

In terms of the member’s comment about—clause 11(4)(a)—“they are mistaken and there is no serious wrongdoing”, I think this really cuts to the heart of one of the reasons why we’re here, which is that under the current law the threshold is set too high and people believe that if they’ve got good grounds to believe something but they don’t necessarily have complete proof, then they won’t make a protected disclosure, because the threshold for that is too high. So let’s be really clear about this: this definition does lower that threshold, which means that if you think you know it, better to disclose it, and then if it subsequently turns out that you were wrong, then you’d still be protected if you went into that in good faith.

Thank you, Madam Chair. I’ve just got a quick question about clause 12, which relates to the guidance of what the receiver should do. It says in clause 12(1), “Within 20 working days of receiving a protected disclosure, the receiver of the disclosure should—” and then it talks about the different steps that may be made: acknowledge receipt, consider, check, deal with, and then inform the discloser with reasons. Then, in clause 12(3), it says, “This section is guidance only. It does not confer a legal right (apart from the entitlements under sections 13 and 30) or impose a legal obligation on any person that is enforceable in a court of law.” and my understanding would be, and it’d be good just to get some clarity from the Minister, that this legal—well, in fact, it does not confer a legal right as regarding time frames and also, I would guess, the actual steps that need to be undertaken.

So the question I have is: is this guidance to the body which is receiving the protected disclosure, and if you were someone who had been a whistleblower is this going to be something which is going to be measured at all to sort of try to ensure that there is some degree of consistency around the steps that are being taken in these particular guidances that need to be done? I guess the concern here is that the legislation sets up a relatively good regime with some steps which need to be undertaken by the receiver of the information but, I guess, the concern would be that there may be a lack of consistency. So it would be good to get some sort of information—or it’s probably outside of this piece of legislation, but in terms of what the Minister’s intention would be in terms of ensuring that there is a relative degree of consistency around how this process is undertaken throughout the Public Service.

Yeah, thank you, Madam Chair. Firstly, can I acknowledge and thank the Minister for the Public Service, who is standing and responding—the Minister in the chair—to the questions; they are important ones.

I’d just like to carry on with the theme that my friend and colleague Chris Penk opened around section 11, and that is—the Minister’s just highlighted in his last contribution that the threshold has been lowered in terms of the protections around whistleblowers, then giving them confidence to come forward. I think that is a very good thing. But I’d just like to ask the Minister, especially in terms of public funds, taxpayers’ money that’s being used by Government departments, appropriations, through a Cabinet and through a Minister, and if there was an employee or someone inside one of those Government departments that found that, felt like, the funds were not being used properly, there was no way of measuring outcomes or where the money was ending, whether it was being used unnecessarily in admin or procurement, and exactly what the new threshold would be, in his view, in terms of an employee in that situation being able to come forward and use the protection of whistleblowers bill legislation?

I know that the Minister was just actually about to raise, just to come back on Mark Mitchell, so I’ll just add another question just to that. It actually is linked to what member Jan Logie asked before in regards to clause 10 around the definition of “serious wrongdoing”. I guess what I’m interested in from the Minister, and, I guess, potentially wearing his other hat, is that subparagraph 10(b)(i) relates to a serious risk to public health, and, as we’ve just discussed, the period of duration for this bill has been, you know, from, in effect, the last four years to five years. As we know, I guess, that risk matrix around what is defined as serious risk to public health has significantly changed. I think it would be fair to say that the paradigm around assessment of risk in public health has changed. And I’m interested for a perspective—I know the Minister mentioned that, you know, we’ve got to get it right, and I think we were on the same page around that, but what assessment, if any, has been thought about the changing paradigm around what is the threshold for serious risk? And, I guess, my underlying concern is to Mark Mitchell’s point, as well, just before, is around that as a result of how things change, that that risk, I guess, ceiling potentially is increased as a result of what we’ve seen through the impact of COVID-19, and, as a result, we may be potentially, unintentionally, of course, blocking people from utilising this portion of the Act.

I think, just to pick up the theme of a few of the questions that have just been brought forward, one of the purposes of clarifying the definition of “serious wrongdoing” is to ensure that it is very clear that it extends to private sector use of public funds and authority. Of course, the protected disclosures regimes has predominantly up until this point been focused on private sector entities, Government departments, and agencies. We have to recognise that the trend over the last 30 or 40 years has been to see greater partnership with the private sector, with the non-Government organisation sector, and in some cases they are exercising authority on behalf of the Government and they are spending public funds. So making sure that the protected disclosures regime applies to those activities is really important. So that’s been one of the drivers, actually—one of the drivers, not the only one—behind the definitional changes that this legislation makes.

Thank you. I just, I guess, wanted to seek some more clarification from the Minister in terms of the limitations, and thank him for the acknowledgment of the limitations of the work so far, and whether at this point I might seek some more clarity around what will be included in the next stages. We’re clearly hearing that there is more work to be done looking at the nuance around serious misconduct and, as the select committee pointed out, the interaction with other pieces of legislation. And that did come up as a concern from some submitters, and I think the interaction with the Oranga Tamariki Act was one thing that was noted in the select committee report, because it was raised by submitters.

There’s also the further extension to the private sector, as the Minister has been discussing, and acknowledging, as the Minister is saying, that a huge number of organisations, whether they be building roads unsuccessfully or successfully, or whether they’re community organisations delivering on behalf of Government. There are a lot of organisations that we have a financial as well as a community interest in ensuring the best integrity of their systems, and this piece of legislation is central to that. And local government is also not fully covered, as we would like to see, in terms of this legislation, and that is an area where—like, I guess every area—if we assume that everything is going to be fine, problems arise, because, actually, we’re not doing the work to make sure that nothing goes wrong.

And then there is the independent oversight body that’s been called for. There are the sanctions for organisations that retaliate. And then there is the better access to compensation for people who are retaliated against. Then there’s the extending of the work the public sector has done around modelled standards, which we’ll get to in Part 3. So I’d love to know if all of those things are on the Minister’s schedule for the next stage, and what time frame are we going to expect those?

And, sorry, one other point with that—

CHAIRPERSON (Hon Jacqui Dean): I call Jan Logie.

Thank you, Madam Chair.

CHAIRPERSON (Hon Jacqui Dean): A whole new speech!

I forgot my final clincher! It was the recommendation for a five-year review that the select committee recommended to put a time frame around that next stage. I wanted it as three years, but the committee was recommending five. I was disappointed to see, if there’s that commitment to the next stage, that we haven’t got a time frame around it.

I have to say, as the Leader of the House and someone who’s been through a number of these debates, I’m not a particular fan of clauses in legislation that require the legislation to be reviewed within a specific time frame. I generally think, instead, if there is extra work that needs to be done, we should get on and do it, and sometimes those clauses, in fact, lead to reviews that aren’t a good use of public time, energy, and resource, when, actually, there can often be other legislative priorities where those resources could be better deployed. So my view is that if the Parliament thinks there is more work to be done, the Parliament should ask for more work to be done, and that’s fine, but those kinds of clauses I’m not a fan of.

In terms of the issues she’s raised, though—yes, I do acknowledge all of those issues, and as I’ve indicated to her, some of those are more complicated and complex than the issues that are contained in this bill. So I think, if we’re going to do them, we need to do them thoroughly. And there are budgetary implications around doing that work, because these things don’t just happen; they require people and time and money to do them. So I can’t give her a specific commitment on time frames around that, other than to say I think it’s important work and it should be done.

The question is that the Minister’s amendments to Part 2 set out on Supplementary Order Paper 131 be agreed to.

Amendments agreed to.

Part 2 as amended agreed to.

Part 3 Protections