Fenton Darien: Protected Disclosures Amendment Bill — First Reading 
Fenton Darien: Protected Disclosures Amendment Bill — First Reading 
[Volume:642;Page:12552] 
DARIEN FENTON (Labour) 
: 
 I am very pleased to speak in the first reading of the Protected Disclosures Amendment Bill. The introduction of the Protected Disclosures Act 2000 was a very important measure that this Labour-led Government enacted to provide protection for employees who make disclosures of information about serious wrongdoings in their organisations. This is known as whistle-blowing and I am sure most New Zealanders are very familiar with the term. 
I recall the furore surrounding Neil Pugmire that led to this bill. In the 1990s he was a psychiatric charge nurse at Lake Alice Hospital. He expressed concern to his then employer Good Health Wanganui over the release of dangerous psychiatric patients into the community. After raising the issue with his management and not getting a satisfactory response he went public with his concerns in the interests of public safety by releasing confidential material to a member of Parliament. Mr Pugmire was suspended and later sacked for his actions. Although the Employment Court eventually reinstated him to his former position he and his family had gone through a long and stressful employment disputes process as well as coping with the uproar in the media and in his community. 
What happened to Mr Pugmire was typical of the prevailing culture of fear in the workplace in the 1990s: fear of losing a job in a time of high unemployment and unprecedented power in the hands of employers. Thankfully this kind of unhealthy workplace is not acceptable to this Government and Labour has ensured that the dreaded culture of the 1990s has been changed for the better through legislation that promotes good faith the right to consultation and to be heard and the right to be represented through one’s union. 
When it comes to public services that are provided with public money our Government takes particular notice. Although an employee has a duty to his or her employer he or she has a higher responsibility to our society and to the Public Service to report acts of wrongdoing by his or her employer or organisation. This is because these are services to the people and for the people that are paid for by the people through their taxes. 
Some employers see the actions of whistleblowers as a breach of loyalty. Employees in this situation can face retaliation from employers when they attempt to stop inappropriate actions. That is why Labour passed the Protected Disclosures Act—to protect people like Neil Pugmire who blow the whistle on serious wrongdoings in their workplace. Employees are protected if they disclose a misuse of public funds or resources a risk to public health and safety or the environment a threat to the maintenance of the law or a public official acting oppressively discriminating against people improperly being grossly negligent or grossly mismanaging. 
Of course an employee must not simply act on something that he or she believes might be happening; he or she must have reasonable grounds for believing that the wrongdoing is true or likely to be true. There are also safeguards in the Act for employers in that employees have to follow set internal procedures to report suspected wrongdoing. If those internal procedures do not work employees may then complain to the appropriate authority. So the Protected Disclosures Act not only protects employees but also promotes transparency in Government and it protects the interests of individuals and the general public. 
Our reputation as a corruption-free country and our consistently good rating on the annual survey of Transparency International where New Zealand is identified as being first-equal with Finland and Iceland as the world’s least corrupt countries is vitally important. That is why the then Minister of State Services had a review of the operation of the Protected Disclosures Act 2000 to ensure that it was working as intended. This Act contains provisions requiring that review and a decision on whether any amendments should be made to the scope and contents of the Act. We know that that was a significant review and a significant report and the current Minister and others have referred to some of the amendments that are recommended in order to improve the operation and effectiveness of the Act. 
I was interested that the report said there have been very few successful efforts by employees to use the legislation. The Public Service Association in its submission on the review reported that it did not know of any and it questioned the extent to which the Act was being used effectively. It said that one member who had used the process had found it to be a long-drawn-out and not well-understood process and felt that the State Services Commission and the Ombudsman could have been much more responsive. But at the same time the association observed that the Act in itself although not widely utilised had value as a strong deterrent to wrongdoing in public sector organisations. I think that that is right and also that it shows that the Public Service is functioning well and according to the principles laid down in the  
Public Service Code of Conduct 
 which sets out the Government’s expectations of standards of behaviour and conduct for the Public Service. 
This bill is designed to improve aspects of the Protected Disclosures Act and it builds on the recommendations of the report which has as outlined in the explanatory note brought to light some evidence of delays inconsistencies and other difficulties in using the legislative procedures properly. 
 The report also highlighted some uncertainty from both organisations and employees as to how the legislative procedures in the Act could be used and how to go about accessing them and referred to a strong perception among some who were consulted on the Act that the identity of a whistle-blowing employee would not be protected. That goes to the heart of the effective application of this Act. We need to be absolutely sure that employees who set out to disclose wrongdoing in their organisations are protected and that the organisations and the employees are absolutely clear about the process. 
This amendment bill makes it easier for whistleblowers to bring serious wrongdoing to light and it will also make it easier for organisations to investigate such allegations effectively. It does this by enhancing the role of the Ombudsman. It gives the Ombudsman the ability to review employers’ protected disclosure procedures. Although many employers now have such procedures in place many do not and this will encourage employers to develop good procedures. The Ombudsman will also be able to give guidance to employees on how the Act works what a serious wrongdoing actually is and whom they can complain to. The Ombudsman will have new powers to review and guide public sector organisation investigations of whistle-blowing but this is a power that is facilitative rather than directive. In addition the Ombudsman can take over an investigation into serious wrongdoing in the public sector if insufficient progress has been made by the organisation but the whistleblower must consent. 
I am also pleased to see that the Act’s processes and protections will be extended to include volunteers board members and members of local authorities. For the purposes of the Act these groups will be employees in regard to confidentiality of identity and they will have immunity from liability and anti-victimisation measures under the Human Rights Act. 
This bill is about encouraging accountability and transparency while at the same time providing better protections for those who put their jobs or positions on the line when they make decisions to disclose wrongdoing in their organisations. As a member of the Government Administration Committee to which this bill is being referred I look forward to hearing submissions on the bill and returning it to the House.