In February 2018, the Government announced that a review of the Protected Disclosures Act 2000 (the Act) had begun. The review will explore whether the current law and procedures to protect whistle blowers needs to be strengthened.

The Government’s review follows recommendations by the State Services Commissioner in 2017, after investigating the Joanne Harrison case, that the Act be reviewed and updated to make it more “user friendly” (for people making disclosures) and to introduce reporting and monitoring requirements.

The Protected Disclosures Act 2000

The Act provides a scheme to protect “whistle-blowers” in both the public and private sectors. Its stated purpose is to promote the public interest by both by facilitating the disclosure and investigation of serious wrongdoing in or by an organisation, and also by protecting employees who make such disclosures.

Serious wrongdoing is defined in the Act and includes: unlawful, corrupt or irregular use of funds or resources of a public sector agency; conduct that poses a serious risk to public health, safety or the environment; conduct that poses a serious risk to the maintenance of the law, including the prevention, investigation and detection of offences, and the right to a fair trial; conduct that amounts to an offence; and conduct by a public official that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement.

An employee wishing to report serious misconduct must generally comply with their organisation’s internal procedures for making disclosures, but in certain circumstances a disclosure can be made to the head of the organisation or an “appropriate authority”. A protected disclosure made in good faith and in accordance with the Act gives an employee certain protections, particularly: the ability to raise personal grievance for any retaliatory action; immunity from civil and criminal proceedings; confidentiality (with certain limitations); and protection under the anti-victimisation provisions of the Human Rights Act 1993.

Joanne Harrison’s offending and the State Services Commission’s (SSC) investigation

In February 2017 former Ministry of Transport senior manager Joanne Harrison was sentenced to three years, seven months in jail, following her earlier admission of fraud. Between 2012 and 2016, by authorising false invoices, she stole more than $725,000 from the Ministry.

Following the discovery of Ms Harrison’s fraud, there were a number of investigations including by the SSC into the treatment of Ministry staff who raised concerns about the conduct of Ms Harrison. The investigation (which was carried out by former Deputy State Services Commissioner Sandi Beattie) focussed on whether any current or former Ministry employees had been disadvantaged as a result of raising concerns about Ms Harrison. In particular, there was media attention and public concern that Ministry employees who had raised issues about Ms Harrison were subsequently made redundant in a restructure that Ms Harrison had been involved in.

SSC’s report on this investigation was released in July 2017.  It found that:

(a)  No Ministry employees had been made redundant because they raised issues about Ms Harrison. Rather, there was a genuine reason for the changes made.  However, three former employees in the finance team were disadvantaged by the way they had been treated, particularly by being made redundant just before Christmas – approximately seven and half months before the changes (an automated invoice processing system) could take effect. This treatment seemed to have stemmed from advice provided by Ms Harrison to the decision-makers. These employees have received a public apology and an agreed (but confidential) package of redress and settlement.

(b) Another Ministry employee had been disadvantaged by Ms Harrison’s actions, when Ms Harrison claimed that a Ministry policy prevented the staff member receiving a higher duties allowance for her secondment (when no such policy existed).  She has also received a public apology and will receive compensation.

(c) Two other cases where Ministry employees may have been treated badly by Ms Harrison were identified, but were outside the scope of the SSC investigation. These have been referred to the Secretary for Transport.

(d) The SSC should look into the operation of complaints procedures, including the operation of the Act, in the broader public service.

Standards for public sector agencies and possible legislative reform

Following release of the SSC’s report, the State Services Commissioner recommended that the Act be reviewed and updated – particularly to make it more “user friendly” (for people making disclosures) and to introduce reporting and monitoring requirements.

In addition, he published new standards for public sector agencies on having effective systems for their staff to raise and escalate issues or concerns, including under the Protected Disclosures Act. The Acting in the Spirit of Service – Speaking up standards outline SSC’s minimum expectations, and contain three key elements:

(a) Getting the foundations right from the start (leadership, awareness, communication and training);

(b) Making sure processes are robust (taking concerns seriously, and having systems for monitoring, reporting, investigation, and communication); and

(c) Keeping people safe (including providing “tailored and dedicated support and protections to staff to keep them safe from reprisal”).

In light of the SSC’s report and the State Services Commissioner’s comments, the Government has announced that the Act will be reviewed. The review process has begun with workshops with key stakeholders from the public and private sector who have knowledge and experience with the Act.  The expressed aim of the workshops is to gather perspectives on the key issues and challenges with the current Act and explore different options for reform.

Key lessons

Public sector organisations should ensure that have integrated the SSC’s expectations into their organisation’s policies and procedures relating to protected disclosures/whistleblowing. SSC’s expectations go beyond previous guidance – particularly in relation to support for whistle-blowers – and should be taken seriously.

All organisations should have a protected disclosures/whistleblowing policy in place which is consistent with the current Act.

Over the longer term, organisations should also keep a watching brief on legislative reform and seek advice to ensure their policies reflect any changes to the whistle-blower legislation.