Whistleblower law falls short

By AUDREY YOUNG political editor

Serious misgivings have been identified in a law designed to protect "whistleblowers" reporting irregularities and serious wrong-doing in their workplace.

An early review of the Protected Disclosures Act 2000 suggests that accusers hold little confidence that their confidentiality will be maintained and it recommends that either a new body be set up to help accusers or that the role of the Ombudsman be beefed up.

"This [confidentiality] is an area where I consider the legislation is not working as intended," said reviewer Mary Scholtens, QC, though she cautioned it was "early days".

"There appears to be a significant body of opinion that the identity of the 'accuser' must, as a matter of natural justice, be disclosed to the person accused."

Among people she interviewed were those who had attempted to make disclosures.

"They were unanimously of the view that the internal processes had worked against them and the legislation did not achieve its aims."

One person described their experience as "that of somebody who has witnessed a murder and could identify the body but could not find anyone prepared to admit that someone is dead and that it should be investigated".

"The acute sense of isolation and frustration expressed by those who had attempted to use the legislation is cause for concern," the report said.

"This was in marked contrast to those who had followed alternative procedures via an intermediary and where anonymity was maintained."

In her report, which was tabled in Parliament last week, Mary Scholtens said that counselling someone who was considering making a disclosure was critical to the successful functioning of the act.

There is no hard data collated on the number of disclosures that have been made under the act.

However, the report says its use has been limited and sometimes inappropriate.

It is often used during employment disputes.

The report also concluded there was confusion about how the law applied in the private sector and to private sector bodies with access to public funds.

"I heard of employees who approached the sector minister, the head of the sector ministry, the Auditor-General and the Ombudsman before finding a body to accept jurisdiction."

She recommends better monitoring and improvement to the act including:

* Extending the role of the Ombudsman or an alternative support agency be established to support those considering making disclosures under the act and to allow them to take an active role in assisting a person to make a protected disclosure.

* The agency monitor the progress of investigations following disclosures and report to Parliament on the use of the act.

* That the act be amended expressly permitting anonymous disclosures, possibly through third parties when necessary.

* Guidelines for ministers dealing with protected disclosures be set out, perhaps in the Cabinet manual.

Two disclosures had no substance

State Services Minister Trevor Mallard says he has had two disclosures made to him under the Protected Disclosures Act 2000 but they had no substance.

He would give few details but believed one case was a misuse of the act by someone who did not know it well enough, and the other was an abuse, "a blocking action".

"Both were employment-related. They weren't proper protected disclosures.

"Both people were complaining about the handling of their own employment relationship."

One had previously been to a designated "appropriate authority" under the act and one had not.

After receiving the disclosures, he asked someone else to assess them to see whether they had merit.

Mr Mallard said he shared concerns raised in the report about confidence in confidentiality, and would consider the recommendations.

In terms of extra support for potential disclosers, he was not keen on setting up another agency. His preference was for a beefed-up ombudsman role but he would have to sound out his Cabinet colleagues.

Law under review

The Protected Disclosures Act has been operating for three years and applies to the public and private sector. It:

* Sets out ways to report serious wrong-doing such as misuse of funds, risks to public health or safety, an offence or gross mismanagement.

* Gives employees protection against prosecution, civil proceedings, disciplinary action, and retaliation.

* Sets out "appropriate authorities" such as the Auditor-General if going to the head of an organisation is not an option.