Protected Disclosures (Protection of Whistleblowers) Bill

We move now to Part 3, which is the debate on clauses 16 to 22, which are the protections. The question is that Part 3 stand part.

Thank you, Madam Chair. Just a brief one, again, for me on this part, please. So Part 3 is protections, and one of them is confidentiality. I just think it’s worth at least a brief discussion in terms of the obligation of confidentiality. So, for those who aren’t familiar with the structure of the legislation, it’s probably worth pointing out that a protected disclosure, or an act or practice, that is subject to the whistleblowing legislation might be made and the recipient of that information, defined as the receiver—funnily enough—would have an obligation then to do certain things, but one of them would be to keep confidential the identity of the discloser. Of course, if we think about the context of such a disclosure being made, it might be that the whistleblower—let’s call that person as such—would be exposing themselves to some risk, and, of course, as the Minister has pointed out, that’s kind of the whole point, which is that someone might go out on a limb, so to speak, to bring to light some unsavoury practice, and so forth.

So, where it’s possible, the identity of the discloser is to be kept confidential of that receiver of the information, but there are some exceptions. It’s worth noting, I think, that, of course, the discloser might consent to be identified, and there might be other situations. There might be reasonable grounds to think that it’s needed for the effective investigation of the disclosure, and there’s not much point, of course, of making a disclosure if nothing can be done with it. So it might be that all roads will lead to Rome in terms of understanding who it is that’s blown the whistle, and this is a bit of a quid pro quo, of course, for the fact of protecting the person who’s made the disclosure.

But the one point that I did want the Minister’s guidance on is in new subclause (3A) in clause 16A. It says that “After releasing identifying information for a reason described in subsection (2)(c),”—those are the ones I’ve been describing as best I can, but in summary—“the receiver must inform the discloser.” So my question was really just as to timing, because it seems to me it might actually be helpful for the receiver of the information to advise the discloser before they released that identifying information. At least if there are circumstances where that could be done safely and without jeopardising the investigation, then that might be more helpful than simply telling them after the fact, and if there’s sort of blowback in any kind of legal or real-world way that affects the discloser and perhaps their family, and so forth, then I think it would be good if they were to have advance warning of that, if at all possible. It might not be practicable, of course, in all circumstances, but it seems to me that that would be at least a helpful thing for the law to provide.

I should just acknowledge before resuming my seat that, as indicated by this being an underlined addition, I suspect this was added by the select committee, so it’s not the Minister’s responsibility in that sense. But, of course, if he’s putting his name to the bill, he’ll probably have some view on that timing issue that I’ve raised. If he’s prepared to share it, again, as always, I’d be grateful for that interaction, such as we’ve enjoyed so far this evening.

Just to be clear around the clauses the member’s referring to, the duty to notify the disclosure that their identity’s going to be released before it’s released applies to circumstances as listed under clause 16(2)(c), where that’s required “(i) for the effective investigation of the disclosure; or … (iii) to comply with the principles of natural justice.” The two other grounds, which it’s not necessarily required for, are where it’s to prevent a serious risk to the public health, public safety, or the health and safety of an individual or the environment. In other words, there’s a sense of urgency required there in order to prevent something that’s about to happen, and so hence it might not be as practical to retrace all of the steps and notify the disclosure at that point. And, of course, where it’s been passed on to a law enforcement agency. That was a change made through the process, to make that very clear and to bring this into line with the Search and Surveillance Act of 2012, in terms of the definitions of what a law enforcement agency is.

Thank you. So, I’d largely like to speak to our Supplementary Order Paper (SOP) 133, even though we’ve had the indication from Minister Hipkins that there won’t be support for it. But before I do that, I’d just flag the question to the Minister: I’m interested in and want to acknowledge the change to clause 16A in his SOP, which changes—and I’ll read it out. So, clause 16A is changed so that there need not be harm shown if information is released that might identify a discloser. Having been through the debates around the harmful digital communications recently, and heard so many stories about the difficulty of proving that harm with actual sharing without consent, in that instance—and in this instance, the interference with the discloser’s privacy is the harm. I was really pleased to see that amendment.

But I am interested in, and will now speak a bit to, my SOP, which adds a clause 18B, which would put a requirement on employers to provide active support to people making a protected disclosure. And I want to acknowledge Professor Michael Macaulay, and Kirsten Windelov at the Public Service Association, who are experts in this area and have informed this SOP. I wish I could claim it was my own brilliance, but it’s not. They know this stuff and they helped me in the drafting of this, because people are really disappointed at the limitations to this bill, recognising that it’s a really baby step. Proportionate to the risk, it just doesn’t feel enough as it is at the moment, whereas this provision of putting protections around people disclosing is shown internationally to be one of the most effective measures that we can take.

So what is in this SOP is if somebody is making a protected disclosure, there’s an onus on the employer to assess a risk: if there is any risk, or what the risks are, to that employee of retaliation or less favourable treatment; to do that risk assessment to that person—not to the organisation, but to that person—and put protections around them to try and protect them from those risks; and then developing a support plan for them that identifies how those risks can be mitigated, providing the employee with access to an independent support person. And we certainly heard, through the Education and Workforce Committee—and if anybody else in the House was there through that committee, some of the stories were just really harrowing. People were just hung out to dry and left by themselves in the wilderness, trying to defend their reputation after attack after attack. But if the organisation has a requirement to protect them and put a support person alongside to help them deal with any attention that may come from it and to process it, then we reduce the harm and the potential of the harm.

Secondly, if a disclosure’s been made, to keep the employee and independent support person informed of any steps taken in relation to the disclosure, and that the employer must actively support the wellbeing of the employee from the time when they become aware of the disclosure or intended disclosure—this is not a resource-heavy thing. It’s actually what’s in the Public Service Commission’s model guidance around speaking up. This is the standard, in our public sector, of what we expect from everyone. It’s a framework to help ensure that every single workplace in this country gets the fact that it’s not about the organisation, at that point—that the focus, to be able to ensure that this process works, needs to be on the protection of the person who makes the disclosure.

So I would really recommend this SOP to all parties in this House. In terms of the thing about this being the next step, I do just want to go back to the point that this process started in 2016. There was consultation in 2018. I think we can do this. These steps are not a step too far, they are just the next obvious step.

Thank you very much; important to stretch one’s legs! Actually, twofold, I’m interested to hear the response to Jan Logie’s part. These things can go too far but I think, actually, the heart of the argument is, ultimately, there’s no point in being a discloser, or someone’s who seeking to do good, if they’re not given the enablement or the protections to do so.

The second part—it’s really very, very simple. It’s do with clause 19(4), “retaliate”—hopefully, a simple question, Minister. This is quite definitional about what it means to retaliate, which is fine, but it doesn’t seem broad enough, potentially. In other words, is it too specific? I’m not going to go through other ways of retaliating, but I’ve often seen in other pieces of legislation there’d be, like, a section 5 which would say other forms of retaliation—in other words, this has become very, very specific. If, in theory’s sake, an employer finds a way to retaliate outside of what’s written here, can he give—that is, the Minister—assurances to the committee that that will be covered? It’s just, to me, the non-legal person here, that normally when we have a “Retaliate means…”, or “Whatever statement means…”, you have A, B, C, D, and E, and, eventually, you have something that says, “and other forms of retaliation.” But this, to me, seems quite specific—yeah, it seems quite specific. Is he sure that we aren’t going to find, in six months’ or a year’s time, a form of retaliation that doesn’t fall within his proposals?

I’ll comment on that quite briefly. It is quite a detailed definition of “retaliation” that the member’s referring to, which is quite a broad and encompassing definition, so I’m not concerned that it’s not clear.

In terms of the issues that Jan Logie raised, one of the things that I found—as we went through the policy development for this bill—to be one of the more challenging things is: considering how the bill might be applied in the case of quite small entities compared to large Government departments. We often think about protected disclosures in the form of, you know, big Government entities with lots of resources and lots of ability to do things, and if someone makes a disclosure, yep, it’s no problem to provide extra support. But we also have to consider that this legislation includes some quite small NGOs, for example, where they’re not necessarily going to always be able to do the sorts of things that the member has outlined.

So if we were going to put those provisions in law, I think we would have to first make sure that we had a good basis for knowing that they were achievable, and that people could actually comply with them. So I’m not, at this point, saying we wouldn’t do it; I’m just saying that we wouldn’t do it right now. Because, again, as I indicated to the member, I think that there are some issues that we just need to unpack more carefully. Of course, as I indicated before, I’m disappointed it’s taken us this long to get this far. It’s been a pretty bumpy couple of years; a few other things have been going on. I hope that we can make more progress on the next part of this a bit more quickly than the first part.

The question is that Minister’s amendments to Part 3 set out on Supplementary Order Paper 131 be agreed to.

Amendments agreed to.

The question is that Jan Logie’s amendments to Part 3 set out on Supplementary Order Paper 133 be agreed to.