Wilkinson Kate: Protected Disclosures Amendment Bill — First Reading 
Wilkinson Kate: Protected Disclosures Amendment Bill — First Reading 
[Volume:642;Page:12554] 
KATE WILKINSON (National) 
: 
 In rising to speak to support the first reading of the Protected Disclosures Amendment Bill it is useful to note firstly the intention or objective of the original 2000 Act. The Act was intended to operate by facilitating the disclosure of serious wrongdoing facilitating the investigation of that serious wrongdoing and protecting employees who make disclosures under the Act. The Act also provided for a review to be made of its operation no sooner than 2 years after its commencement. In fact that review took place as we have heard in 2003 and indeed the review appears to be somewhat comprehensive comprising some 90-plus pages. Four years later the results—or some of the results—of that review can now be found in the bill before this House. The reason why it has taken so long to get here is certainly anyone’s guess. 
We have heard that the bill seems to have two main objectives. Firstly it seeks to give the Ombudsman a more substantial managing and coordinating role in an attempt to reduce the risks of confusion and the risks of disclosures of serious wrongdoing falling between the gaps in various organisations’ investigative jurisdictions. Secondly the bill seeks to clarify and extend the group of people who can make disclosures of serious wrongdoing—that is who can be a whistleblower—and therefore come within the protection of the Act. For example as we have heard volunteers and board members may now be treated as employees for most of the purposes of the Act. Currently and in summary the Act protects an employee or a former employee of an organisation who discloses serious wrongdoing from retaliatory action from the employer and from civil and criminal suit in relation to the making of that disclosure. 
I have read the 2003 review of this Act and it is interesting to note certain things. There is no comprehensive data on the extent to which the Act has been used because there is no particular organisation that has any oversight of the legislation. I am not sure that this bill goes so far as to remedy this although it does give the Ombudsman a more substantial managing and coordinating role which is specifically described as “not an advocacy role for the whistle-blower”. The report also noted that the original whistleblower’s Act had not resulted in a significant volume of protected disclosures of serious wrongdoing and that there was some lack of knowledge or awareness of the terms of the legislation and how indeed it should be applied. In fact the Chief Ombudsman noted: “Although the Office had been surprised by the paucity of complaints under the Act during the first two and a half years those it received had been time consuming.” 
When it first became law the Act was expected to trigger an avalanche of whistle-blowing which did not prove to be the case. It may well be however that the mere presence of this Act and prospective whistleblowers having access to information and therefore seeing why something was happening was sufficient to allay their suspicions. Many submissions leading up to the 2003 review both from employer representative groups and employee representative groups indicated they had little if any experience to report either positive or negative with the Act. 
There appears to have been some confusion as to who indeed could make a disclosure about what and from which organisation. Should or could for example elected members of local authorities—say mayors and councillors—come within the definition of an “employee”? To cover this confusion the bill does extend that definition as we have heard of “employee” to include firstly a person who is a member of the board or governing body of the organisation and secondly a person who works for the organisation as a volunteer. An issue was also raised in relation to anonymous disclosures. Some have the view that anonymous disclosures are not covered by the legislation the protections available to others cannot be provided to persons whose identity is not known and “as you do not know whether the person is an “employee” within the Act you do not know whether the Act covers them.” 
A further concern raised in the 2003 report was whether it was inappropriate for the Act to require organisations to accept such anonymous disclosures. This issue of confidentiality is important. Although the Act does attempt as one of its protections for whistleblowers to confer on them confidentiality and privacy there does seem to be some scepticism “and the ability to provide full confidentiality to someone disclosing wrongdoing is almost non-existent” and is considered to be “a fundamental problem for staff.” This is to be balanced however with the guidelines relating to natural justice to the effect that a person is entitled to know the identity of his or her accuser. Perhaps this is an issue that could be considered further at the select committee. 
National supports the first reading of this bill the efforts to improve the operation and administration of the Protected Disclosures Act 2000 and the recommendations of the 2003 review. It is important however that protecting whistleblowers and indeed giving them the confidence to be whistleblowers is not just a matter for legislative change. Ongoing operational improvements are also very important. The 2003 review noted that the Chief Ombudsman gave examples of employers not recognising a disclosure as a potential disclosure and where the whistleblower’s identity had indeed been revealed without considering those confidentiality obligations. His view was that this indicated inadequate processes and a lack of understanding of the legislation. Consequently the protections under the Act may appear to be ineffective and may be one reason why the Act has not been used much—whistleblowers simply do not feel secure enough about their protections. 
Closer examination of this bill by the select committee is required. National supports the bill at its first reading and we support its referral to the select committee for closer scrutiny so that the review that was carried out 4 years ago in 2003 can be scrutinised. 
Debate interrupted.