Worth Richard: Protected Disclosures Amendment Bill — Second Reading 
Worth Richard: Protected Disclosures Amendment Bill — Second Reading 
[Volume:653;Page:2183] 
Hon Dr RICHARD WORTH (Minister of Internal Affairs) 
 on behalf of the  
Minister of State Services 
: I move  
That the Protected Disclosures Amendment Bill be now read a second time 
. This bill is designed to build on the current purpose of the principal Act to promote the public interest in two ways: first by facilitating the disclosure and investigation of serious wrongdoing in or by an organisation; and second by protecting employees who in accordance with the Act make such disclosures. The bill has two parts. Part 1 contains amendments to the Protected Disclosures Act 2000. Part 2 contains a transitional provision. 
In December 2003 Trevor Mallard the then Minister of State Services tabled a report in the House on the Act’s first few years. The report which was prepared by Mary Scholtens QC concluded that the Act had not been used a great deal and that it had not always been used well. Without a central coordinator the range of appropriate authorities to which employees disclosed was confusing. Some disclosures fell between the gaps in the jurisdiction of those authorities. Ms Scholtens also referred to a strong perception amongst some of those consulted on the Act that the identity of a whistle-blowing employee will not be protected. She concluded that the Ombudsmen could assist whistleblowers coordinate referrals between appropriate authorities and guide and review the Act’s operation. The bill gives the Ombudsmen that enhanced role. It also picks up on a number of other recommendations designed to improve the Act’s protections and processes. 
The bill has been considered by the Government Administration Committee which recommended two minor changes. The first is the insertion in clause 8 of new section 6C(2): “An organisation is not required to comply with a request made under subsection (1) if it is not a public sector organisation.” 
The amendment is designed to make it clear that a private sector organisation is not obliged to comply with a request from the Ombudsmen for information about the organisation’s internal procedures. 
The second change is that new section 15E(3) in clause 8 be amended to include section 30 of the Ombudsmen Act. Including a reference to section 30 makes it an offence to refuse to provide to an Ombudsman the information specified in new section 15E. It applies only to public sector organisations and the change is designed to enhance the workability of the section by providing a deterrent to a person who without lawful justification or excuse fails to comply with the lawful requirement of an Ombudsman. 
The Ombudsmen will be authorised to provide information and guidance to public or private sector employees on using the Act at any time not just on request. For example the Ombudsmen will advise on what is serious wrongdoing and on whom to complain to. This should provide a filter for misguided disclosures as well as encourage whistleblowers to throw light on serious wrongdoing. 
Public sector organisations are required to have internal procedures on how disclosures must be made to them and how such disclosures will be investigated. The Act requires that whistleblowers must first disclose in accordance with their employing organisation’s internal procedures but complying with internal procedures can be difficult if there are none. Section 6C empowers the Ombudsmen to request the internal procedures and related information from the organisation concerned. As a result organisations may be encouraged to have in place a good effective protected disclosures policy. Employees’ confidence should also increase if they know what the employing organisation’s internal procedures are. 
The Ombudsmen will have new powers to review and guide public sector organisations’ investigations of whistle-blowing under section 15B in clause 8. The power to guide investigations is facilitative rather than directive and the power will be activated either on the organisation’s request or at the Ombudsmen’s discretion. This should help prevent disclosures of serious wrongdoing from circulating around various agencies without resolution. 
Currently the Ombudsmen may make reports to Parliament under section 29 of the Ombudsmen Act. Section 15C in clause 8 specifies a number of matters on which the Ombudsmen may report about the exercise of their powers under the Protected Disclosures Act. The list includes the number and types of inquiries made to the Ombudsmen under the Act. This list is designed to provide Parliament with more information on how the Act is operating and on how the Ombudsmen are carrying out their powers. 
The new sections that I have just described come with information-requiring powers conferred by section 15E(3). The Ombudsmen will be able to acquire information from public sector organisations in keeping with current limits on their investigative jurisdiction. Private sector organisations will not be required to comply but will be encouraged to do so. There are inbuilt protections from misuse of such powers already in the Ombudsmen Act and in the bill. 
Under section 15A the Ombudsmen will be able to take over a public sector organisation’s investigation of serious wrongdoing alleged against it. The trigger is that the Ombudsmen consider that insufficient progress has been made by the organisation and that the whistleblower consents to the takeover. The Ombudsmen may also investigate in conjunction with that organisation. In addition the Ombudsmen will take on a coordinating role under section 15 in relation to protected disclosures that have already been made to another person or body. 
 This again applies only with the whistleblower’s consent. In exceptional circumstances such as an emergency an Ombudsman may refer the disclosure on to an appropriate authority or to a Minister to investigate. Alternatively she or he may investigate when the matter relates to a public sector organisation. 
On the topic of extending the Act’s processes and protections this bill extends the Act to a wider range of people and bolsters the Act’s protections. The term “employee” will include volunteers who work for no reward. Board members and members of local authorities will be able to whistle-blow under the Act. Both groups will be employees for the purposes of confidentiality of identity immunity from liability and the anti-victimisation protections in the Human Rights Act. Contractors are already covered by the Act. 
Even with the Act’s protections whistle-blowing carries some personal risk to the employee but silence is not in the public interest. Measures in the bill designed to give more substance to the Act’s protections include the Ombudsmen assisting organisations to keep the confidentiality of disclosers expanding the Act to protect volunteers of information in support of an existing disclosure of serious wrongdoing expanding protection to people who reasonably but mistakenly believe they are disclosing serious wrongdoing declaring agreements unlawful that seek to contract out of the Act and clarifying that disclosers are not excluded from the Act merely because they did not refer to the Act by name when disclosing. 
Further technical non-compliance with the Act’s processes for whistle-blowing will no longer prevent an employee from coming within its protections. According to section 6A in clause 6 provided that the whistleblower has substantially complied with the Act the technical breach will not disqualify him or her. Here is an example of the effect of this change. An employee in a Wanganui Crown research institute blows the whistle on two staff who are burying toxic waste in riverbed shingle. Under the internal procedures the employee should first disclose to the human resources manager but instead she discloses to the general manager. She still comes within the Act’s protections despite technical non-compliance with one of the process steps in section 7. 
In summary this bill is designed to improve aspects of the Protected Disclosures Act. It gives the Ombudsmen an enhanced coordinating and helping role. As a result it should be easier for whistleblowers to bring serious wrongdoings to light and it should be easier for organisations to investigate effectively. I think this is a good bill and I commend it to the House.