Protected Disclosures Amendment Bill

R DOUG WOOLERTON (NZ First) Link to this

New Zealand First supports the Protected Disclosures Amendment Bill going to a select committee. In doing so we are saying that, in this country, not only is it important for justice to be seen to be done but also it is important that everybody in society knows where to go to seek justice and redress in any matter of wrongdoing. People need to understand that where they do that, to a degree, they will have some sort of protection under the law.

We in New Zealand First also believe—and we have spoken about it many times—that the law does not confine itself just to the letter of the law. We believe that people should understand the protocols that in many instances guide people in jobs of responsibility in our country. We believe it is important that people live up to their moral obligations as well as living up to the letter of the law. We cannot always rely just on the letter of the law. If we were to do so, our courts would be jammed full of people seeking redress over petty matters. So we think it is most important, if our society is to work properly, that when there is wrongdoing and someone within an organisation sees that something is seriously amiss—and often it is an employee—that person knows not only what to do but also where to go in order to redress the situation.

New Zealand First would like to see this bill go to a select committee. We would like the people of New Zealand to have their right and proper chance to submit on this issue, and we would like to hear what they say.

KEITH LOCKE (Green) Link to this

The Green Party will be supporting the Protected Disclosures Amendment Bill going to the select committee. The Green Party supported the original legislation that this bill is amending and improving on. The whole area of whistleblowers is fraught with difficulty. We need to protect whistleblowers, particularly when they expose very serious wrongdoing, be it of a management type or of a financial type. Often the people doing the wrongdoing, if they are in positions of authority in the public organisation, have a vested interest in persecuting any potential whistleblower or any person who might support that whistleblower.

In respect of the original legislation I remember we said at the time that there were some problems—in a certain sense there is an inevitability of problems—of the whistleblower having to go through the official management structure of the organisation in making a complaint, in that sometimes the person he or she was complaining to was directly or indirectly involved in the wrongdoing. This bill helps to rectify that problem by providing a certain ability for the Ombudsman to say that he or she can see the whistleblower’s point and will direct that person’s complaint to a more appropriate authority or person who is clearly not accused of the wrongdoing being brought into the picture in the whistle-blowing. I think that helps, as well.

One of the issues involved in that, of course, is protecting the confidentiality of the whistleblower, and that is sometimes difficult. In organisations people will ask who blew the whistle, and word gets around and people start talking. The situation is somewhat difficult. Having more protections, with the Ombudsman being involved in those protections, is very important, because if people think that both their jobs and their reputations will be threatened if they whistle-blow, then we will not get very far. It is important not only to protect the whistleblower but also to protect those who, as the bill states, come forward on a voluntary basis and say: “Yes, I would like to give information. I support what the whistleblower has said. There is corruption here that should be investigated, and I saw an instance of it in looking through the books the other day.”, or whatever the situation might be.

Having the institution of the Ombudsman take more of a managing role in how the whistle-blowing complaint proceeds is, I think, quite useful too, because the Ombudsman is a neutral party. The Ombudsman is experienced in these matters, and can understand and build up the expertise of where organisations can go wrong in dealing with whistle-blowing. For most organisations it would be quite a novel event. Under the Protected Disclosures Act to date there have not been very many uses of the whistle-blowing legislation, which indicates some problems with it. The management of most organisations would not be too experienced in how to deal with complaints because of that, and the Ombudsman can help, in that respect. The Ombudsman has a more technical role too in defining the information and other technical requirements in terms of applying the Act correctly.

The bill’s explanatory note indicates that, under the original Act, if somebody did something a bit technically wrong and did not refer to the Act when making a complaint—and just said: “I want to expose some wrongdoing.”—or if he or she missed some step in the technical procedures, then that person could get into problems. This bill is saying that as long as the whistleblower is acting in good faith in making the complaint, even if he or she makes a few technical mistakes along the way, the complaint should proceed and should not be undermined or ruled out because of that. The Ombudsman will play a role in determining that, as well.

The Green Party thinks that this is a very good bill. Whistle-blowing is so essential in keeping us as a robust democracy and keeping public institutions accountable. The more we can correct a situation where an organisation is secretive, can hide its wrongdoing behind walls of secrecy, and perhaps punish, in one way or another, people who object, the more our democracy will prosper. Thank you.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

When employees, former employees, or members of an organisation are able to report misconduct such as a violation of health and safety regulations, corruption, fraud, or any other activities that might provide a direct threat to public interest, we politician types have coined a phrase making it all sound nice and legal. We call it protected disclosure.

The bureaucrats like to call it whistle-blowing because it makes them feel that what they have done is righteous and good for the country. There is another name for it, of course, and that is the one that the hoodlums use: they call it narking. If one gets caught doing it, one does not get any medals or write-ups in the paper; one gets the bash.

The original Protected Disclosures Act, whichever way one wants to look at it, was koretake anyway. A recent review highlighted evidence of delays, inconsistencies, confusion, difficulties in using the procedures, a lack of communication, a lack of confidentiality, and a lack of protection of identity. That is hardly the promise a person would want to lay out in front of those potential narks and whistleblowers who he or she hopes will sabotage their careers to serve his or her interests. In fact, given the current flaws in this legislation, it is no wonder narking has such a bad name.

Then there is the question about exactly what kind of crime we are talking about, because the real crime ain’t the stuff plastered across the front pages of one’s local paper; it is the stuff hidden away in the pages of the business section. Criminologist Dr Greg Newbold reckons that for every dollar stolen by blue-collar criminals in this country, around $40 slides into middle-class pockets. Get this, folks: your poncy-ass, professional, pilfering pals are taking this country for millions, while my whanaunga are filling up the jails, and you wonder why us Māori have this strange notion that the criminal justice system works only for rich white folks. Insider trading, price fixing, illegal offshore accounts, tax avoidance, employee theft, insurance fraud, stolen or counterfeit product sales—mate, when it comes to crime, the white-collar bandits have got it sussed.

To confirm that strange Māori notion about rich white criminals always getting the breaks, even David Bradshaw of the Serious Fraud Office reckons that the approach taken towards white-collar offending tends toward the softly softly method of crime control. In his 2004 annual report, Bradshaw noted several cases that suggested white-collar criminals were being treated more leniently than other criminals. Jonathan Krebs of the Law Society’s criminal committee was not so subtle. Just last month he said that the police had a poor record of tackling white-collar fraud, and instead prioritised resources towards physical crime.

This stuff about how the white-collar crims get away while poor Polynesian crims get jailed for some rather petty bloody offences makes me want to go out and preach in prisons to all of the whanaunga I have in there: “Mend your ways, all ye brownies who have fallen by the wayside. Come unto the path of righteousness, whiteness, light fingers, and fraudulence; and if thou must sin, then sin with aplomb, sin with style, and sin with a white collar for greatest effect. Make lots and lots of money, slip a smidgeon to the Lord, and sin against only the poor and the Māori, for theirs is already the kingdom of heaven when they die, so they will not mind you robbing them blind while they live.”

But to bring a sense of perspective to all this, let me also say that while white corporate raiders continue on their merry way, untroubled by the pathetically weak laws of this land, Māori people are being hunted down and arrested, as we speak. That is not because of any life-threatening actions, but because of this Government’s kihi-kōtore, sycophantic, yassum-massa attitude to America’s demand that we accept, unreservedly, its definition of terrorism, which is justified, no doubt, by some protected disclosures.

Is this whole terrorism thing over-blown? Hell, yes! Television One flies in an expert on terrorism and protected disclosures. He looks over the facts, and he tells us that the police action is over the top, unnecessary, and overkill, and that what has been identified is not terrorism, at all, but just good old-fashioned Kiwi activism. Even Ross Meurant—who was in the Auckland task force and the Red Squad, and was the MP who used protected disclosure to try to get me lynched for terrorism during his maiden speech in this very House—reckons that officers were victims of their own propaganda. He said “the actions of the police are totally excessive in the extreme”, and added: “This is always the case where subjective assessment of information is peer-reviewed by one’s immediate supervisor and all persons on the police unit concerned have a self-interest to justify their existence”. Meurant compared the police actions to those of the Bush administration invading Iraq with supposed evidence of weapons of mass destruction.

Is there a threat to the stability of this nation? Hell, yes! Here is a protected disclosure, for example, from the Justice and Electoral Committee, where we are trying to turn back this Labour Government’s nasty little attempt to stack the next election to suit itself, in the face of massive criticism from the Law Society, the Human Rights Commission, and thousands of others.

Is there a threat to the Prime Minister? Hell, yes! If the polls are to be believed, John Key is hoping to put her out of business permanently at the next election.

Is there a threat to life? Hell, yes! Pissing off a policeman, like Steven Wallace did, can be a very serious threat to one’s life.

Are these threats from Māori serious? Hell, yes! There is mounting frustration and anger right across the country by Māori genuinely aggrieved by the continued loss of lands, the denial of the Treaty, and now these raids, smashing into Māori homes and terrorising Māori communities. Of course Māori are bloody angry. Why would they not be?

But guess what, folks: none of this is news really. Māori have been protesting land theft for 150 years, and the State forces have always opposed them. How many times have we heard Māori says that they are prepared to fight and die for their land. For heaven’s sake! Shane Jones used to talk like that, before Helen Clark got him by the tongue. Tariana Turia came to this House as a dedicated Māori activist, and she has not changed one iota. I got in here only because of a tidal wave of unrest and an absolute rejection by Māoridom of the thieving ways of this Government.

So is this terrorism threat serious? Yes; hell, yes! The actions of the New Zealand Police—who, contrary to what the Minister says, are not separate from the Government but are, in fact, an arm of the Government—highlight an ongoing ignorance of the Māori community by the New Zealand Police; a reluctance to engage Māori and a willingness to arrest Māori; a refusal to allow their own Māori officers to negotiate on day one, in order to save the country a million-dollar surveillance operation over the next 18 months; and a readiness to brutalise Tūhoe in exactly the same way the they did 100 years ago, even using 70 armed constabulary like they did back then.

The recent actions of the New Zealand Police, with the support of this Labour Government, signal clearly not just to Tuhoe but also to the rest of Māoridom that, hell yes, the terrorism of the Māori community has, in fact, never ever ended—

Hon PAREKURA HOROMIA (Minister of Māori Affairs) Link to this

I raise a point of order, Madam Speaker. I just want to point out that the Māori members in the Labour Party have supported this bill going to the select committee.

Hon PETER DUNNE (Leader—United Future) Link to this

That inflammatory speech would be one of the most disgusting, embittered, divisive, and downright irrelevant speeches I have heard in this House in a long time, and it ill becomes the dignity of the member Hone Harawira and this House to behave in that manner on a matter of this type.

CHESTER BORROWS (National—Whanganui) Link to this

The National Party is pleased to support the Protected Disclosures Amendment Bill and looks forward to discussion in the select committee. The bill is designed to give the Ombudsman an enhanced guiding, reviewing, and investigative role in disclosures of wrongdoing. A review of the 2000 Act in 2003 revealed some evidence of delays, inconsistencies, and other difficulties, including a lack of clarity for whistleblowers as to how to go about disclosing their concerns.

It is good to see that one of the prime points of this legislation is that the bill will broaden the scope of who is to be considered a protected person, treating board members and volunteers in organisations as employees for the purpose of the protection of the Act. In recent times we have seen, for instance, whistle-blowing by a board member of the Whanganui District Health Board, Clive Solomon, who made his disclosures to the public about deep concerns he had as far as health delivery in Wanganui was concerned. In many ways he was strongly castigated by those looking on, by other members of the board, and by employees of the board, as well. We saw, for instance, moves to sanction him—quite unfairly—for bringing to the notice of the public a number of concerns that later on were found by a review by the Ministry of Health to be completely justified. Although the reviewing officers may not have been particularly keen on the way in which Mr Solomon made these matters public, nevertheless they agreed that they were worthy of being brought into the public arena.

Another provision of this Protected Disclosures Amendment Bill is that it will allow to be protected those disclosures that may not formally fit into the criteria of what has previously been protected. The importance of that was asserted by the former Chief Ombudsman Sir Brian Elwood, who said in reference to protection of disclosures: “It should become part of the psyche of New Zealand society. It is easier to achieve that psyche if legislation applies generally with few, if any, exceptions.” We should all be taking an interest in what is going on around us. Those of us who are involved in Government departments specifically—but also those in any other organisation that is dealing with members of the public—have by our own power and ability the means to inflict circumstances on to members of the public, who unknowingly or unwittingly have to accept a level of service, and may have to accept a set of circumstances that are actually working against them in a negative way. Anyone in an organisation should be able to bring that to the attention of the public.

We heard previously—and it is a matter of history now—that the initial legislation came out of the Pugmire disclosures in respect of Lake Alice Hospital. Since then we have seen some other interesting disclosures that were dealt with in other ways. I wonder, if this legislation was actually in vogue at the time, whether, for instance, Mr Kit Richards would have been dealt with in the way that he was. Members may remember that he was the man who worked for Timberlands on the West Coast who sent some email correspondence to other people, both within and outside the organisation. He did not formally fit the criterion for protection under the whistleblowers’ legislation. The Prime Minister said she wanted his head on a plate by lunchtime, and she got it. Is that the society we want to live in within this country? No, I do not think it is the society that we want to live in. We want to know that people who have the courage to bring forth these issues to the public and to hold a point of view will not lose their job because they happen to invoke the ire of the Prime Minister or anybody else.

The legislation also allows protection for those who substantially comply with the Act but with some minor technical failure fall outside it. It protects witnesses in support of the whistleblower. So the friends of Mr Richards, Mr Pugmire, or Mr Solomon, who may have decided—because of evidence that they had, or knowledge or experience that they had—to support those disclosures, are also protected by this legislation. That is a good thing too.

The Ombudsman can take a managing and coordinating role but is not given the role to advocate for the whistleblower or issue directions. The Ombudsmen have consecutively had the confidence of Parliament; the Ombudsmen are seen as holding a very important role within New Zealand society and are held in high regard across Parliament and the public. They are a good fit for the increased facilitation and coordination role. We look forward to further discussion around those matters when this bill goes before the select committee.

It was interesting to see in recent times disclosures made by Senior Sergeant Iain Saunders within the police. He was working on a project in relation to police recruiting in the shadow of other comments that had been made by the manager of human resources within the police. The work that he was doing was throwing up some inconsistencies with the line that was being trotted out nationally on the effects of recruiting policy as it was seeing recruits enter the Police College. A newspaper got hold of this work and wanted release of it. It sought this from the police through the official information channels, and it was denied and denied. Time frames expired and the information still was not released. Eventually the newspaper reporter went to the Ombudsman and the police had to release it.

On release and publication of that information the human resources manager went to Senior Sergeant Iain Saunders and made threats to him—as they were perceived by Mr Saunders, in any event—to destroy his career. What happened then? A review was held by someone contracted by the police, a Mr Churchman, who was an expert in labour relations and industrial law. But we know that after his inquiry, which lasted for several weeks, there were absolutely no written statements taken from a number of key players in that investigation. In the end it was found that Mr Annan had apparently not made a serious threat to destroy Mr Saunders’ career, although the words were used. I find it quite ironic that we had a situation then where we would expect that as a whistleblower Mr Saunders would have been protected by the legislation that existed at the present time, but he still did not have the satisfaction of being able to have the points he was making fully investigated by someone who at least took written statements from those people who were the main players.

Of course, we also saw that on the completion of that investigation, the deputy commissioner came out and said that Mr Annan had been cleared of any wrong doing. This was at a time when other members of the police were under a strict threat—some would say suggestion, or advice—not to go to the media but, what do you know, within the media there was a release that basically said that everything that Mr Saunders said was wrong and everything that Mr Annan said was right. I fail to see how that follows along with the good faith of the employment legislation introduced by this Government, which should have been followed by its servants.

In any event National is looking forward to seeing this matter arrive at the select committee. We will be supporting it and, as I said earlier in the words of the former Chief Ombudsman Sir Brian Elwood, to take responsibility for blowing the whistle, or drawing to the attention of the New Zealand public those inconsistencies that exist within public organisations and negatively impact on New Zealanders, is something we should be encouraging within this society.

SHANE JONES (Labour) Link to this

Kia ora, Madam Assistant Speaker. I stand to take a call on the Protected Disclosures Amendment Bill, which will be referred to the appropriate select committee. I do not plan to continue on in the incendiary way that my fellow Northland Tai Tokerau member Mr Harawira did but rather to focus on the content of the bill.

However, I would like to point out that this bill is designed to give the Ombudsman an enhanced reviewing and investigating role, and we have in our midst Mr McGee, who is soon to depart to assume that role. In the context of this speech—and I took the liberty of checking whether such an insertion into a speech about the Protected Disclosures Amendment Bill would be permitted—I join with other MPs who no doubt will have made, and will be making, congratulatory references to Mr McGee. As a young MP it has been very impressive to watch him dispense advice and knowledge in the House.

This bill strikes at the question of how potential wrongdoing, potential fraud, or acts of a corrupt nature see the light of day when those who suspect they witnessed the potential crime or witnessed potential larceny feel unwilling or unable to give evidence or highlight the existence of such an act. These potential whistleblowers suffer doubts as to whether they should fulfil either an ethical or a moral duty, because historically there have not been comprehensive levels of protection. I would point out, however, that an earlier Labour Government did seek to offer levels of protection to whistleblowers. This is an essential ingredient for any system, any institution, and in particular the public sector to work effectively.

We can all think of instances that have hit the media and indeed have been the substance of debates in this House. There is hardly a member in this House who would not have had referred to him or her from time to time anxieties, doubts, and even suspicions of wrongdoing. Under this bill whistleblowers will enjoy elevated protection. Those who are board members, volunteers, etc. will now be regarded as having the ability to enjoy protection under this proposal. Such a level of protection will not only afford a greater level of security to them when they make the harsh and difficult step to isolate a person or a group of people who may have committed a crime but also obliges the authorities to protect the identity of the whistleblower and to treat with a great deal of judiciousness the information that may be referred to them.

When my colleague Annette King introduced the bill to the House she accentuated the importance of maintaining integrity and standards in the public sector. There are already a host of valves and avenues—processes—to enable decision makers to be made accountable. Earlier we heard from Mr Hone Harawira, who told us in a very heated fashion about his view in terms of the decision makers in relation to recent police actions. I just say to all members, and in particular our Māori members, let us have a clear head and not a fiery mouth, and let us just suspend judgment and embrace Sir James Carroll’s dictum of taihoa until we are in possession of the information. Flinging around wild accusations and making an already fraught situation more difficult with torrid outbursts does not advance our situation in any way whatsoever.

I was in Australia recently and had occasion to read in one of the local papers over there about a recent cartel case that had been successfully prosecuted. A sum of $30-odd million had been paid over by the owner of a packaging company called Visy. In that article was an interesting reference to the fact that when Australia sought to extend and develop greater levels of protection in terms of whistle-blowing, it was able to borrow on the American model. I raise this because the problems that we are dealing with here are not isolated to New Zealand. If there are practices, behaviours, and systemic failures that ought to see the light of day and enjoy the disinfectant quality of media scrutiny, or public approval or disapproval, then it does go to the heart of our nation’s reputation in the eyes of our trading partners and other nation States that look to us as to the way we are observing the rule of law and contract law, and the manner in which our institutions are governed and managed.

So just as the Aussies managed to borrow, and no doubt amend and adapt an American model, leading to whistleblowers coming to the fore to a substantial settlement to break up a cartel in the packaging area—the name of the company I have earlier referred to—I have no doubt that there will come a time when people who work in our institutions will feel emboldened to bring wrongdoing to the attention of their superiors, public officials, or members of the media, who no doubt will treat it with a level of sophistication and seriousness, which we all too often do not see. The bill accentuates the duty on all of us in this House to ensure that where people make the difficult step to highlight probable wrongdoing, they will not be personally hounded into penury, and their professional standards that have developed in terms of a reputation will not be swept out, down some sort of a bung.

Of course, there will be a fear that vexatious, mischievous, and half-baked claims—one or three of those come forward in the House from time to time—might actually blight this area of the law or the people who hold responsible positions, whether they are senior figures in the education field, leaders in the public sector commercial field, or those handling sensitive areas such as the Department of Corrections. There may be a fear that very negative, embittered minds might use this legislation or this option for a mischievous trivial purpose. When we think of the calibre of the man who is soon to become our newest Ombudsman, I have no doubt in my mind that such claims that are not substantial, but could be designed for trivial purposes, will be winnowed out, and that this area of the law will not be trivialised, but rather will offer a particularly good level of protection.

From time to time we hear and learn about abusive practices and abusive types of behaviour that have been visited upon women and young workers. Indeed, I remember being a young worker in the Westfield freezing works, in the fellmongery. While I worked there I knew that whatever I did I was going to suffer the boredom of university and get a degree, because suffering green paint down my finely honed legs and going home hairless was not a career. Such things do occur in the fellmongery when one’s mind is not on the job. Abusive work practices also are an example where people will be able to complain and not suffer a greater level of either abuse or intimidation. All of these abusive practices will be swept up, and a larger number of people will be able to ensure that workplaces are safe, but superiors and bosses who have an obligation to abide by standards of integrity and to ensure that the institutions are governed and managed in a compliant and law-like manner have to tow the line.

So, along with my colleagues from this side of the House, and in contrast to my whanaunga’s incendiary speech, I look forward to learning more about this bill when it eventually returns from the select committee. Kia ora tātou.

DARREN HUGHES (Labour—Otaki) Link to this

I stand to support the motion moved by the Minister of State Services, the Hon Annette King, that the Protected Disclosures Amendment Bill be now read a first time. This bill amends legislation that we in the Labour Party have taken seriously for a long time: the need for there to be on our law books a legal protection for people who do want to be a whistleblower, as it is often called. This legislation had its start in the 1990s when the Labour spokesperson on justice, the Hon Phil Goff, attempted to introduce a member’s bill to make sure there was a law in this area. That bill was not successful, because Labour was in Opposition at that time, and the then National Government voted it down. On Labour becoming the Government at the end of 1999, Trevor Mallard as Minister of State Services picked up the idea of having protected disclosures legislation, and it was passed into law. Now we are coming back, after the law has been in effect for some time, to have a look at it.

I know that students from Kirkwood Intermediate School from Christchurch are visiting Parliament today, and I know that they are trying to learn as much as they can about Parliament. One of the great things about our House and our system of democracy is that we put a lot of trust into our elected officials. Through our elected officials we hire the public servants—all the people who work in the different Government departments and ministries across the country and in different areas of importance to New Zealanders. With that has to go a lot of trust, because those people obviously have a lot of responsibility over all our lives and the lives of people in this country and all its communities. But we know that sometimes people do the wrong thing; when they are given responsibility, sometimes that can be misused. If a person is working alongside somebody in an organisation, sees a wrongdoing, and thinks that the right thing should be done, that person wants to have a way of speaking up about that and making sure that it can be put right.

This Protected Disclosures Amendment Bill is all about making sure there is a system where people can safely raise the concerns they have but not get into trouble for doing that. The term “whistleblower” is used to describe a member of staff or a member of the public who sees something going wrong in an organisation he or she is connected with and wants to try to make sure that the right thing can happen.