Gehan Gunasekara: Let's make it easy for whistleblowers

5:30 AM Wednesday Nov 28, 2012

Could the 29 miners killed at Pike River be alive today if better whistleblower protection laws had been in place? This is the troubling suggestion made by the Chief Ombudsman, Dame Beverley Wakem.

She has stated it is time to revisit the existing law, drawn up in 2000, which has arguably been ineffective as too few whistleblowers have come forward.

Whistleblowing saves lives but for it to be effective there must be a mechanism for timely disclosure as well as bullet-proof protection of the whistleblower.

It takes a lot of courage to expose wrongdoing by one's workmates, boss or by the authorities, but most countries encourage the practice as it is in the wider public interest.

Whether New Zealand's law, the Protected Disclosures Act 2000, gets the balance right is a matter that has caused me much disquiet of late.

This is because the wording of the original bill, drawn up by Labour's Phil Goff, was changed, partly at my instigation, to address what I criticised as being unworkable aspects.

These aspects were removed from the act which was duly passed by the then Labour-Alliance Government. With hindsight, aspects of the original bill ought perhaps to have remained in place.

The Goff Bill proposed to create a new super agency, the Whistleblower Protection Agency (WPA). At the time I criticised this proposal for creating yet another bureaucracy (when we possessed the office of Ombudsman already) and as potentially leading to the emasculation of existing authorities, such as the Police or Serious Fraud Office.

However, this argument was made on the assumption that these authorities, such as the Labour Department and the Mines Inspectorate, would be sufficiently robust in investigating lapses. History has shown this assumption to be misplaced.

There has also been considerable confusion, in many instances, as to who is the appropriate authority, as defined by the act. Individuals can often get the run-around when seeking to identify the regulator with authority to investigate a serious wrongdoing.

The Office of the Ombudsman gives guidance but is not charged with investigating wrongdoing. That is not in its brief and it lacks the resources to do so.

A streamlined office, such as Goff's proposed WPA, has much to commend it as it would simplify procedures and be easily accessible, as, for example, the Privacy Commissioner is, through its website and public profile.

The WPA could still channel allegations to the appropriate agency (say the Police or Labour Department) but also retain the authority to follow up to see if they have been resolved by requiring a reporting back in due course.

The second aspect of the original Goff bill was its proposal to grant absolute protection as to the whistleblower's identity, through making it a criminal offence to disclose it. This I believed at the time, and still do to this day, would be unworkable. This is because within an organisation, people generally come to know through informal channels when someone has exposed a colleague or information relating to that organisation.

Attempting to muzzle such information is somewhat akin to seeking to stop the tide coming in.

Protecting the whistleblower from victimisation and from discrimination as a consequence is far more feasible and is what the act presently provides for.

On the other hand, perhaps there should have been a mechanism for allowing anonymous disclosures. Protection exists only for disclosures made in good faith (this rules out disgruntled former employees with an axe to grind) and which are either first made internally or to appropriate authorities. The protection does not extend to disclosures to members of Parliament or to the news media. This ought to be extended to anonymous disclosures made in good faith to a new agency such as a WPA.

In these instances, it could be made an offence to disclose the informer's identity.

Perhaps, then, more individuals will come forward anonymously to blow the whistle.

If another disaster such as that at Pike River can be avoided as a result, the law will have finally got the balance right.

Gehan Gunasekara is an associate professor specialising in commercial law and privacy at the University of Auckland Business School.