Protected Disclosures (Protection of Whistleblowers) Bill

The question is that the motion be agreed to—

💬 Simon O’Connor: Mr Speaker? Mr Speaker.

Point of order, Mr Speaker. Thank you, Mr Speaker. I believe, in the hubbub of members on both sides leaving with some degree of noise, that you might not have heard the National Party member calling for that.

I certainly didn’t. But I hadn’t quite finished putting the question, so I’ll be very lenient and call Simon O’Connor.

Oh, very good, Mr Speaker. Look, delighted to take a call, and thank you to the whip as well. The hubbub is one thing, a mask is another, which makes communicating important. And I think that is even more important, as we just talk about protecting whistleblowers. Not that I have anything particularly controversial or insightful to share here today, but I do have a voice. I do have a voice and I’m very, very pleased that that was not protected, excluded, removed, or otherwise.

Look, this is a bill that National is happy to support. Many of my colleagues have traversed well and truly the reasons why we support it. Look, fundamentally, the law is out of date. It’s not completely out of purpose, it still remains—the older legislation that is—somewhat fit for purpose. But as we know, particularly as we get older, one needs to work a little bit harder at things. And so this Government tidying up the bill, making it fitter, stronger, more relevant, more modern is a very, very positive move.

Look, what it’s going to enable is—across various sectors in society, including the public sector, but not exclusively—a much simpler way of engaging around what we term whistleblowing. Now, let’s be really clear, the law is not going to allow, I think fortunately, vexatious, ongoing—I suppose that’s a tautology. It’s not going to enable continuous campaigning for the sake of it. I know there’s been various debates in the House as the law has progressed to whether or not it should be much, much broader in scope and the flexibility of who can speak and what they can say, but I think, again, on this side of the House, we’re relatively happy where the law has landed. Fundamentally, that’s to allow someone who has serious concerns about the conduct within their workplace or a piece of policy or otherwise to raise that safely. So that’s the first, I suppose, critical element here, that someone who is a whistleblower will be protected. I think that’s probably a message that will be repeated if there are more speeches, one hopes optimistically. That actually those who choose to whistle-blow will know that this Parliament, or the law rather, has their back.

Secondly, amongst other factors of the bill it ensures there’s a process to be put in place to ensure what is said is taken seriously. And those who have responsibility to take those accusations from a whistleblower seriously know clearly what they have to do, including, of course, protecting the person who is the whistleblower. I think that’s fundamentally and critically important because, ultimately, at the heart of any democracy is a confidence in its systems. It doesn’t matter if it’s the Parliament, the judiciary, any arm of Government—particularly in the civil service. I know different people have raised some examples, and it’s not my intention to run through any of those in particular, but it’ll be no surprise as, I suppose, a more modern society, when we approach more controversial topics—it doesn’t matter if that’s domestic; one might even think about how COVID was managed, huge Government powers exerted over the last two years. It’d be good to know that there’s a law in place to allow people to whistle-blow, to highlight issues they think are problematic.

We need think of only overseas jurisdictions, what’s happened there, and even in the New Zealand context—our geopolitical interest overseas and wanting to make sure that what we do here, information that’s being processed here, keeps New Zealand in the best of light. So, again, a protected whistleblower scheme enables civil servants, amongst others, to speak up and again to be protected—which I suppose is at the heart of the bill, because that’s sort of in the title.

Look, I think a very good carve-out and a really important one in my thinking, particularly with my interest in foreign affairs and defence and intelligence and so forth, is that actually those involved in the intelligence sector, those who are involved with the national security of the Realm, are much more restricted in what they can and cannot release. There is always going to be a tension in that space. Just because someone is working in the intelligence or national security space doesn’t mean that, you know, mischievous things may happen, but it does need to be a much, much tighter process.

So from my point of view, looking through the legislation, the carve-out to basically say—there’s a few nuances in this, but the carve-out to say that those working in defence of the Realm, those involved with intelligence and national security matters, are not as protected in this space. It is not really their job to be releasing information that is sensitive. And we have seen from overseas jurisdictions there are some individuals who believe that the information they’ve got deserves to be in the public. I suppose at one level that’s, I don’t know, for their agency to decide, but fundamentally, it’s not the moral thing to do when it comes to elements of national security, and it could apply here in New Zealand sometime in the future. But again, I’m not going to name particular examples from overseas.

But what has always struck me with these whistleblowers is they are people, if you could use the analogy, down in the trenches, which is well and good, but they are not the people who have the overall view of what is happening. And that’s very, very easy, particularly in that space, to think that the information you have and the view you have of it—sorry, not you, Mr Speaker, in the context of the people I’m referencing, that they feel it’s the right and bounding thing to do to release that information to the public, when in fact it doesn’t remain in the national interest. And then perhaps that’s the interplay here—the individual working in the intelligence space probably does not have the overview of what is in the good of the Realm of the nation and hence why that carve-out has been used.

So an excellent move there, but I think, as I said right at the start, incredibly—well, actually that’s probably going to overcook it a little bit; let’s just draw that back. I think it’s a good piece of legislation. Let’s not get too exuberant or superlative. It’s a good piece of legislation. This side of the House supports it. And finally, I think the encouragement for people is twofold—ultimately, once this law is passed—first and foremost to use it, but to use it wisely; it is something to be used to protect society, but not to be abused. So for those people who do have information which is important for New Zealanders to know or to provide a rightful challenge to the system, please do step forward, have confidence that this new piece of legislation is going to enable that to happen much more safely. And I do want to put that little caveat there: this is never going to be completely and utterly safe. There is always going to be a risk for whoever chooses to be a whistleblower, thus Parliament is just trying to make that a little bit better and easier. But do have the confidence to speak up. But in terms of that confidence, it’s probably also, I hope, the intention of this entire Parliament to stress that we don’t want to see a piece of law like this abused or misused, regardless of differences of opinion politically across this House that’s still mine, that New Zealand is a great little democracy, that we are a relatively corruption-free society, that our systems work.

Then probably the final, final thought is that ultimately, while we have a whistleblower piece of legislation which will soon, hopefully, become law, there remain a number of other avenues where people are able to raise their concerns, in fact even through this House, through various parliamentarians.

But anyway, in order not to protect the last 1 minute 47 seconds of my speech, I’m just going to hand that over. I’m not sure if I’ve blown the whistle on that or otherwise, but I’m more than happy to commend this bill to the House.

Noa‘ia ‘e mauri. This bill is really all about integrity, reputation, and democracy. We’ve heard in this House before that New Zealand always ranks really highly on the Transparency International Corruption Perceptions Index, and that is by design, and it is safeguarded through bills like this one. We mustn’t take that for granted, because the Act that this bill is seeking to amend is now more than 20 years old, and it is really timely to make sure that we have the institutions—including the laws—in place to maintain our integrity and our reputation internationally, and to keep our democracy strong. And I say that—and it sounds rather dramatic—but the institutions of the public sector are part of those very fundamental democratic institutions, and it is the people in them who maintain them and maintain their integrity. When things go wrong, it is really, really important that those people have an avenue by which to air their knowledge or their grievance, and that that is taken seriously, and that there is a culture where that is encouraged—rather than a culture of fear where people fear for their jobs or fear a reprisal.

So we do need this legislation to counter corruption, to counter mismanagement, bullying, and to counter the silence that often happens with the bad stuff. We need a culture of safety, and we need a “speak up” culture. Even the fact that rules are strengthened and that there is a process in place, internally, in these public sector institutions may be enough to stop those who would do “bad stuff” from acting in the first place. So we can see the impact of this law is twofold, really: it’s around making sure that people feel safe and that they can speak up, but also sending the signals to the sector and to the institutions that bad behaviour won’t be tolerated. And this sits really well, actually, with the member’s bill that I have the privilege of shepherding through this House, protecting journalist sources. The reason I say that is because currently, with this particular bill that we’re debating today, a whistleblower may be protected, but there would still be a gap in the law if they went to a journalist and the journalist themselves weren’t protected. So I’m really heartened to see this law alongside that one.

There is evidence, we’ve heard already, that shows the culture in the public sector, that shows a culture of a little bit of fear, where people are fearful to speak out. Forty percent of all respondents currently in work felt their jobs would be safe if they reported the wrongdoing. But that’s 40 percent. That could be significantly higher, and that was the Chief Ombudsman’s commissioned report. Fraudsters can even squeeze out multiple whistleblowers. The research showed that whistleblowers felt they might not be protected, or they didn’t think that their identity would be anonymous. So what this bill does, most importantly, is strengthen protections by looking mainly at the role of the receiver of the information, and it puts an onus on the receiver of the information in public institutions to at least acknowledge receipt of the information. They must also consider the disclosure. What will they do with it? They need to take it seriously. They need to deal with the matter, and they need to—very importantly—inform the discloser about what the receiver is doing, and provide reasons for the decision.

So the bill also allows the receiver to take no action—equally importantly—and that is to counter vexatious claims, and that was something that has been levelled both in the media, and also at the select committee stage. We don’t want to see vexatious claimants continually blowing their whistles—it’s a little bit like the boy who cried wolf; eventually nobody will listen to them, but it’s very expensive and troubling for the organisation and for those who might be at the receiving end of that—and so this legislation tidies that up really nicely. It also allows people to report to an external authority at any time of the process—very, very important—because previously there were limitations on what type of information could be disclosed and when it could be disclosed. Now, that doesn’t make for a culture of disclosure. It sends a signal to whistleblowers that somehow, if they got the wrong time or they had something not quite right in their information, they would be rocking the boat, and that they would be punished. So this bill changes that.

It also requires public sector organisations to provide support for disclosures, and that’s important: that those who are going to disclose know in advance that they will be supported, and what will be available to them. There’s a requirement in the bill that says that the procedures must be internally socialised, because part of that is about setting up that culture, that people can feel safe—people know when they go into whistleblowing what they can expect, what the requirement is on the receiver of the information, how they will be protected, and that they will be dealt with fairly, which is at the heart of this.

It also includes serious wrongdoing and extends that, and it includes that in the misuse of public funds and resources, and that extension goes to, whether in a public or a private organisation—if it includes non-Government persons working on behalf of Government agencies. And this is just to better reflect the current reality where employment status is no longer just public servants or contractors. There are hybrid kind of roles; there are people who take on roles and do quite significant work for public agencies who are not technically considered full-time employees, so that catches those people as well. For private institutions, it’s a light-handed approach and that’s good. It avoids the pitfalls that have been experienced in Australia, which has led to inquiries into questions around the scope of the Act. But it’s our view that the private sector would still do well to have a policy around this.

This bill supports New Zealand’s Open Government Partnership National Action Plan 2018-2020. I’ve mentioned the member’s bill that I have the privilege of shepherding, but there are other things sitting alongside it, looking at greater transparency and greater engagement with Parliament, and all of this—again, we’ve talked about the culture of these organisations—is about creating a culture in society where people are proud of the integrity of the institutions, and know how the institutions work, and want to engage with them, and want them to be robust. We can see from what’s happened with the war in Ukraine the threat that robust democracies can have, and how important it is that we make sure that not only is our democracy strengthened but that people really appreciate the democratic processes. So we’ve got programmes around engagement with Parliament, we’ve got a Youth Parliament which is happening in July—I’m very excited, and I’d like to do a shout out to Cam Fraser, my Youth MP in the Taieri electorate. We also have programmes that are looking at extending public participation in policy, so we can have the best possible policies as we govern, and as we hold each other to account.

So the following changes were made at the select committee, and these are just some of the technical elements which were around processes for Officers of Parliament. As I’ve mentioned, the meaning of “serious wrongdoing” has been extended and clarified by the Minister to include health and safety, and risk to health and safety; disclosing to one’s organisation; lots more clarification and emphasis on what the receiver should do; and also allowing for receivers to decide to take no action, but having to really justify that decision, so that it is fair to the discloser.

I agree with what Simon O’Connor said about making sure there are safeguards for those working in intelligence and security information. Obviously, we want to make sure that security is paramount, and therefore this bill very tidily ensures that those pieces of information are safeguarded from inappropriate disclosure, and also there are strengthened protections for disclosures made under a duty of some sort. So those people who are required to disclose under a duty will now feel more protected and more confident about doing so.

So I’ve walked through a little bit about the reasons why I think this is such an important bill. It really speaks to democracy, to integrity, to our international reputation. And that’s not only at a security level, but actually for foreign investment. Those who would like to put funds into New Zealand, get involved with our country, they need to know that the institutions here are transparent, and are sound, and are corruption-free. So we want to continue to have New Zealand remain at the top, or near the top, of the Transparency International Corruptions Perception Index. I feel confident that this bill will enable us to do this, and I commend it to the House.

Tēnā koe e te Māngai o te Whare. Look, New Zealand 20 years ago was, very proudly, one of the very first countries to introduce a specially dedicated law to protect whistleblowers. That was the Protected Disclosures Act back in 2000. But things have changed and times have changed. It’s great to have this bill—which revitalises and modernises a law that is so important for transparency, for democracy, and for making sure that New Zealand operates in a way that is fair to all—back in the House. This bill specifically repeals the Protected Disclosures Act of 2000 and replaces it with the new Protected Disclosures (Protection of Whistleblowers) Act.

For employees who do uncover serious misconduct—and that would include fraud, corruption, and it’s both in the public and the private sectors—it’s important that these workplaces have a safe way for wrongdoings to be reported. It’s important that those workers, who deserve an effective organisational process as well as having those legal protections in place—so making sure that we have a clear pathway forward, that all workers know where that is, and where those protections exist, to make sure that if they have that important information they can be forthcoming and provide that in a way that protects themselves.

It’s also important to note that if we want to maintain those high standards that have been spoken about throughout this debate—our high ranking internationally as being a country that’s known for its transparency—then we need to maintain these high integrity standards. We have to continue to work hard to tackle serious misconduct within New Zealand, and that’s exactly what this bill does. Whistleblowers perform a really important function. They are critical to maintaining our public confidence in the integrity of Government, and business as well, in New Zealand. To have that function in place is so important in a close and tight-knit country like New Zealand.

International research that has been conducted has found that reporting by employees is the single most important method in which wrongdoing in any organisation is brought to light. So it is only sensible that we make sure we strengthen those processes and enable those protections for employees to be in place.

One of the single most significant hurdles that is in place for uncovering serious wrongdoing is the reluctance of employees to step forward—to step into the light and to make that report. They either don’t know the policy or what the process is within their private or public organisation and, furthermore, they fear retaliation—what are going to be the kickbacks if you step forward and make representations against the organisation, against the Government department, against the employer. They’re not confident that the report will go to someone in an organisation who is actually able to do something about it, and there is a general feeling that “if in doubt, speak up” is not supported well enough. So this bill takes a step to strengthen that culture, to enable people to speak up. That ability to be able to speak up acts as quite a clear deterrent to wrongdoers so that wrongdoing is less likely to occur in the very first place. That is contributing to transparency and increasing public confidence in what we have in place.

As I’ve already mentioned, there’s been some research in recent academic work that’s looked at several misconduct cases to try and analyse how things could be strengthened. The current legislation has come under scrutiny to look at the fact that it is not working as effectively as it could be and, in fact, it lags behind international best practice in a number of key areas. As I’ve already stated, that law is now 20 years old and it needs to be updated. People don’t always know how to use the Act, they don’t know how it exists, and those practices are not embedded within workplaces and publications available to employees within workplaces. So this bill takes some very clear steps to make sure that those changes are made available and are widely publicised to those who may want to use it.

I’d like to acknowledge the work of the Education and Workforce Committee, and that there were some really important changes made and what these changes are in the bill. The bill makes significant changes, not just from select committee but also from that initial bill, and takes into account the changed environment that New Zealand’s now working in and modernises it. Allowing people to report serious wrongdoing to an external authority is important if they wish to—if it is kept in-house, it is not always the most conducive way to increase transparency. But also strengthening protections for disclosers by outlining what those receiving the disclosures should do is important. So, once you’ve handed over that information, it is giving that person—the whistleblower—a sense of security about what the pathway is forward once that information has been disclosed.

In addition to this, there’s also some extra requirements for the public sector to make sure public sector organisations provide support for those disclosures—that there are internal processes, that those who are disclosing information know where to go to and how to receive that extra support if required. Extending the coverage of serious wrongdoing also includes the misuse of public funds or resources, and that includes for public sector as well as private sector. It’s important to note that this also extends for those who are acting on behalf of the Public Service—so the fact that you are contracting in would not be a reason to be exempt from these provisions. That’s important given the way that we use contractors, too, in Government and also in the private sector.

Requiring public sector organisations to state in their published internal procedures how support for disclosers would be provided—so that’s made readily available. Also the bill creates a new schedule to the Act that named the most likely and appropriate authorities for a particular subject matter—a bit of a map for knowing, if you’re in a particular area, how you would negotiate that space.

It’s incredibly important that people know where to go when they have information that is really important, that that process is mapped out. New Zealand has always been a world leader in integrity, transparency, and openness, and consistently at the top of Transparency International’s Corruption Perceptions Index. We want to maintain that high ranking. We want to make sure that our country is renowned across the world for having transparency and having a high level of public confidence in our processes. It’s good to see strong measures being made to modernise legislation in this space.

An effective regime for disclosing serious wrongdoing in the workplace is critical to New Zealand and to maintaining that high standard. This Government is committed to protecting New Zealanders who speak up about serious wrongdoing in the workplace, and making sure there is a clear pathway forward. This bill also fits with our larger plan, in terms of New Zealand’s open Government action plan, and shows how we are committed to being an open Government that makes sure there are clear, transparent processes that the public knows—we know that encourages a good democracy, a healthy democracy, and one that we are proud to be a part of.

I commend the Minister. I also commend those who’ve all done the work in the background from the Public Service to make sure we have a clear and concise bill that puts forward a stronger way for democracy and transparency in New Zealand. I commend the bill to the House.

Motion agreed to.

Bill read a third time.