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Protected Disclosure Act Reform Consultation State Services Commission PO Box329 Wellington 6140

By email: [email protected]

7 December 2018

Dear Sir/Madam

Submission to State Services Commission on Disclosures Act 2000

eview of the P,•otected

Thank you for the opportunity to make a submission on the r:eview of the Protected Disclosures Act 2000 ("the Act"). We provide professional services relating to economic crime including the provision of whistle blower services to our clients and related inv..estigation services.

All our whistleblower service clients essentially "opt in" to an arrangement which permits PwC to receive complaints of wrong-doing (including matters which fall below the threshold of the Act), but yet provide all the protections of the Act. The protections we provide allow complainants to either name themselves for passing on to our client for investigation, to remain completely anonymous (recognising that there are some limitations for some matters only), or to provide their identity to PwC, which PwC keeps confidential to itself, but allows communications to be passed between the complainant and the organisation as it investigates the matter.

Background and inh·o uction

Tip-offs are one of the most effective methods of detecting fraud and other serious wrongdoing. A recent report by the Association of Certified Fraud Examiners found that 40% of occupational fraud was discovered through tip-offs, and 53% of these tips came from employees 1• PwC's Global Economic Crime Survey found that globally, tip-offs of some form were the primary detection method of respectively, 23%, 40% and 27% of serious fraud in our 2014, 2016 and 2018 surveys. Our experience in operating whistleblowing services indicates that it also plays an important role in uncovering harmful work environments such as bullying.

Optionsfor change

With some qualifications we supp01t the Commission's Options of its 'Options for Change'. Our qualifications relate to:

The proposed exclusion of bullying and harassment from the definition of 'serious wrongdoing'; and The lack of protection for whistleblowers who wish to maintain their anonymity.

1 Association of Certified Fraud Examiners, 'Report to the Nations: 2018 Global Study on Occupational Fraud and Abuse', page 17.

Pricewate1'houseCoopers Consulting (New Zealand) LP, 188 Quay Street, Private Bag 92162, Auckland 1142, New Zealand T: +64 9 355 8000, F: +64 9 355 8001, pwc.co.nz

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Our submission is primarily on these two issues.

Bullying and harassment

1. We submit that the definition of 'serious wrongdoing' include workplace bullying an /or harassment. Disclosures of this type are important and insightful for management and should be included as an area of misconduct. Bullying can also be indicative of something more serious occurring. The majority of callers to our clients' whistle blower services are for what could be characterised as bullying or similar behaviours.

Lack of protection for anonymous disclosures

2. The Commission has stated that it will not consider extending the Act's protections to people who report concerns anonymously. We disagree, and believe that the Act's protections should be awarded to those who disclose anonymously too. The ACFE 2018 report found that 14% of tip-offs were anonymous2 •

a. To disallow protections against anon ous complainants can only discourage complaints. A person who refuses to provide their identity, but who has a useful disclosure to make, should not live iit the fear that they might be 'outed', upon making that disclosure. This is the scenario wbich would exist in the current proposal.

b. Similarly, a person who wis es to remain anonymous to the organisation, but is prepared to be open to the receiving agency through an appropriate mechanism (such as what PwC provides), should similarly not fear reprisal or being 'outed'.

3. It is correct that it can make it more difficult for an anonymous matter to be investigated, but we suggest that the choice between no disclosure or a limited disclosure is obvious. Evidence will in the normal course e collected to substantiate or not an allegation and in most cases, this can (and should) be done without involving the whistleblower.

4. Some complainants are mistaken or the matters not proven, but we are not aware, nor have our clients notified us, of a single false or malicious complaint in the years we have provided whistle blowing services. If the justification for not permitting anonymous complaints is the fear of false complaints that should be supported by evidence. We note that in any investigation, the principles of natural justice apply anyway.

Comment on Option 5

We are aware that this comprehensive option involves high costs of implementation for organisations. This includes our Whistleblower clients who we consider operate very effective Whistleblower systems at minimal cost, and no cost to the public.

Changes that could be made to improve the effectiveness of Option 5

While we believe that the suggested action points with our qualifications in Option s are the most appropriate for achieving the Act's desired outcomes, we consider that organisational culture is significant in driving a constructive whistleblower regime.

2 Association of Ce1tified Fraud Examiners, 'Repott to the Nations: 2018 Global Study on Occupational Fraud and Abuse', page 17.

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Training

1. At a recent PwC Fraud Academy event we hosted we heard insights from a whistleblowe1, 'Ma1y' who had disclosed a substantial fraud perpetrated by her manager. Our experience in dealing with whistleblowers, supported by Mary's experience, identifies that the tw ij.ctors crucial to a successful prot ected disclosures regime are:

a. an organisational culture that positively encourages employees to ~eak up about their concerns; and

b. clear , proven, trusted anonymous systems that protect those who discover wrongdoing3.

2. We suggest that the Act introduces provisions to try to furtlier effect this outcome through mandatory staff training at induction and at regular intervals during an employee's employment. The "Training" requirements prescribed or in s57(b) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 ("AML/CFI' Act") are a suitable comparison point.

Independent protected disclosures service

4. We understand that an oversight body 0

3'_proposed to be established as an external reporting path other than the appropriate authorities. Organisations that operate an independent service by a professional firm such as we offer should be able to continue to operate such a service. If necessary there could be an independent accreditation or auditing system which pennits independent provid rs t o continue to offer whistleblower services and report on clients' operation on an,annual or biennial basis to confirm compliance (such as the AML/CFT Act provides for) .

We would be please to 'discuss our submission with you directly.

Yours sincerely

Pricewate hCJ..useCoopers Consulting (New Zealand) LP

Stephen Drain Partner ' ~2Ra)~p'"=n·.,..va---=c"""y ___ _

3 'The pain of blowing the whistle' https://www.linkedin.com/pulse/pain-blowing-whistle-stephendrain?aiticleld- 6423449440509616128#comments-6423449440509616128&trk- nrof-nost Accessed 22 November 2018.

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Wellington 6012

7 December 2018

Submission on the Protected Disclosures Act

Unethical Behaviour

I have just come across this review and realise it closes today. I am not familiar with all the details and realise it mainly applies to public servants and public services. However members of the public as well as work colleagues need to be protected.

I am not sure whether the review of the act will cover the following area but I am most concerned about the whistle blowers who see and report unethical behaviour. This behaviour can occur in many areas such as clinical environments, universities and hospitals. New Zealand examples are the Unfortunate Experiment in National Women’s Hospital or abuse of young people in institutions like Lake Alice. It can also be about plagiarism or cheating in a variety of settings. Whistleblowers can be colleagues, academics, members of the public or people in the media. They all need to be protected (and encouraged to do the brave act of whistleblowing) under the act.

US ethicist Carl Elliott has written and presented about many situations of whistleblowing on unethical behaviour such as in medical trials. He presented a keynote at the NZ Bioethics Conference in Dunedin last year. He has also been a whistleblower on unethical behaviour in his own university. He reports that almost universally the whistleblower is demonised and ostracised, while those who are doing to the unethical behaviour continue to get accolades and positive media. He has lived this backlash from his whistleblowing against powerful and unethical interests.

Here is an article he wrote about the man who was the whistleblower against the notorious Tuskagee experience.

https://theamericanscholar.org/tuskegee-truth-teller/#.XAnr29szaM8

It would be valuable for your review to consult with Professor Elliott. It would also be useful to consult with two of our most famous whistleblowers, Sandra Coney and Phillida Bunkle. They would probably report that the negative consequences of this courageous activity are long term, and protections weak.

We currently have a Royal Commission on the Historical Abuse of Children in State and Faith Based care because numerous whistle blowers over many decades reported this abuse. It is an activity we all need to encourage.

One other thing to consider. I am a researcher on autism. A common feature of autism is a fierce commitment to truth telling and disbelief that other people can act in illegal or unethical ways. People with autism often become whistleblowers and it can add to general discrimination and marginalisation of them. I suggest training in autism and neurodiversity for anyone involved with implementing this act.

Regards

(Dr) Hilary Stace

9(2)(a) privacy

9(2)(a) privacy

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Multicultural Tauranga – Tauranga Regional Multicultural Council Inc. P.O. Box 841, Tauranga 3144, New Zealand. Tauranga Multicultural Centre: Complex 1, upstairs, Main Street, Historic Village on 17th Avenue, Tauranga. +64 7 571 6419, [email protected], www.trmc.co.nz

Member of Multicultural New Zealand since 1994. Registered New Zealand charity CC 36898.

Promoting cultural diversity and harmony in the community

Multicultural Tauranga

Submission on the Protected Disclosures Act Review Preamble Please note that our awareness of this review and submission opportunity arose only 4 days prior to submission closure. Therefore, our submission is neither in-depth nor widely consulted amongst our stakeholders. 1. We have no basis upon which to advocate for or against the 5 options proposed. 2. Our submission is prompted by a desire to comment on the context associated with

“whistle-blowing” as it relates to migrants , regional seasonal workers and international students and their carers.

3. It is our request that the processes around raising concerns be adapted to ensure that they

are easy to access and follow for those not familiar with laws in New Zealand. The conditions currently described for raising issues are highly prescriptive, meaning that those not familiar with New Zealand law can have difficulty understanding the pathways to be followed and the procedures associated with raising issues of concern. In that respect, we wish to suggest that there be levels of process adopted, starting with ensuring that people who have concerns of any nature have the knowledge and means of raising them, knowing that some independent person will take their concern seriously enough to walk beside them as the issue is investigated and an appropriate level of complaint and/or response determined – which may or may not include action of a legal nature.

4. Recent media has lifted the lid on bad employer practices relating to migrants that go largely

unreported because of fear of immigration consequences arising for the victim. While we do not condone complicit behavior on the part of someone attempting to enter and work in New Zealand, we would request that consideration be given within this review for protecting those caught up inadvertently as a simple result of not understanding New Zealand law and/or perhaps assuming that practices common in their homeland are also common in New Zealand. Coercion should be recognised for what it is.

5. The current law appears to us to be very specific about raising matters relating to

employment (employee, contractor, volunteer) within an organisation and relating to activity suspected of being inappropriate within the workplace. It is our request that the law also allow for people to raise issues of concern they become aware of within the workplace that are not necessarily happening within the workplace. Examples of this can include but not be limited to domestic violence, marrying more than one wife, forced marriages, underage marriages, mutilation, etc. Such activity may become knowledge to someone within their workplace setting, relating to a colleague, superior or employer, but not be

Multicultural TAURANGA

activity relating specifically to activity within the workplace. We request that the review of the legislation take these circumstances into consideration and allow for someone to raise concerns and an appropriate level of follow-up and action without fear of retribution.

6. We request that the span of the law be extended to include places of learning, to encompass

international students at all levels and accompanying care-givers of international student minors.

Ann Kerewaro President

FairWay Resolution Limited Tā te Hinengaro Tōkeke Whakatau

1 | P a g e December 2018

Protected Disclosures Act

Tēna koutou kātoa

Summary of Submissions

FairWay Resolution Limited (“FairWay”) supports the State Services Commission’s (“the Commission”) primary objectives of creating clarity within the Protected Disclosure Act (“the Act”) and ensuring that organisations covered by the Act have clear, accessible, and easy to use processes and procedures in place. FairWay makes three principle submissions, which are threaded through our responses to the Commission’s questions.

1. Greater clarity of the protected disclosure process, both internal to organisations and external, enhances the accessibility and transparency of the process, which in turn fosters an environment of safety to disclose and effective action, and promotes a climate of trust.

2. Legislation alone is not enough. Change in legislation should also include a multi-faceted approach, which includes training, further best-practice guidance, implementation tool-kits that are accessible by a wide variety of covered organisations, and a route for employers to also seek guidance and advice outside of the Commission.

3. Retaliation protections should be strengthened. However, just as with other changes proposed, legislative change is not enough. In other related contexts, employees are less likely to engage with a formal process for fear of retaliation. Including non-legislative supports for organisations and employees that seeks to prevent the potential for retaliatory behaviour to occur is key to ensuring a well-functioning anti-retaliation mechanism.

About FairWay Ko te kai a te rangatira he kōrero

The food of chiefs is dialogue – Māori proverb

FairWay is the largest conflict management and dispute resolution company in New Zealand. Employee owned, our business is built on trust and collaboration. We employ approximately 120 staff and contract with over 110 specialist reviewers and dispute resolution practitioners (adjudicators, reviewers, mediators and conciliators) throughout New Zealand. Our operating model delivers services across the conflict management cycle. We assist parties in gaining skill to prevent conflict, learn how to manage conflict, and how to address current conflict in a way that best suits them and the situation.

Fairwa Lead -Resolve -Agree y



FairWay handles over 16,000 disputes each year — of all kinds and levels of complexity, including workplace disputes, medical, insurance, financial services, telecommunications, family, local government and building and construction. Our dispute resolution expertise means that we see the positive potential in conflict. This is particularly true in our workplace conflict service.

Our workplace conflict service focuses on assisting healing and rebuilding workplace relationships, preventing unproductive conflict through training and skill-building, and analysing conflict patterns to assist organisations in anticipating potential conflict issues.

As the proverb above suggests, facilitating dialogue is a key success factor in building productive relationships.

Ngā mihi

Jennifer Mahony FairWay Resolution Limited Client Director – Workplace Conflict

Give us your feedback Name

Jennifer Mahony

Email

Are you happy for your name to be made public as part of this consultation?

Yes

No

Are you happy for your submission responses to be made publicly available?

Yes

No

If you answered ’no’ to either of the above, please provide reasons why you think your name should be withheld under the Official Information Act.

Not applicable.

9(2)(a) privacy


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What do we want to achieve? 1. Do you agree with the objectives and risks outlined above? Please provide a

reason for your answer.

FairWay supports the Commission’s objective of ensuring that the Act provides transparent, clear, and accessible processes; that organisations covered by the Act also provide transparent, clear, and accessible processes; that covered employers know what is expected of them and how to achieve those expectations; that issues within the “public interest” are clearly and appropriately defined as is the definition of serious wrongdoing; and that both covered organisations and employees of covered organisations continue to have access to information and advice to help them determine the best way forward with protected disclosures.

2. Do you have any other ideas for defining the purpose of the regime and assessing options? If yes, please provide details.

Please see FairWay’s answer to Question 1.

What isn’t working so well now? 3. Do you agree with this characterisation of the key problems? Please provide a

reason for your answer.

With respect to Problems 1, 3 and 4 identified in the Commission’s consultation document, FairWay believes that while the current processes under the Act provide for a number of entry points to make a protected disclosure, the number of entry points, and the complexity of their use, can impair access to and transparency of the protected disclosure process. The number of entry points can also affect an employee’s view of their safety in making a protected disclosure.

FairWay also believes that providing clear process requirements for how covered organisations receive and address protected disclosures provides clarity across all organisations, which also removes barriers to access, promotes system-wide transparency, and alleviates process concerns about the safety of making the disclosure.

FairWay further believes addressing these issues will have an ameliorating effect on accessibility of both internal and external disclosure processes under the Act, which will have a positive effect on effectiveness of the protected disclosure process.

With respect to Problem 4 identified in the Commission’s consultation document, having stronger retaliation provisions within the Act can provide a sense of protection for employees but may not be the most effective measure for reducing retaliatory behaviour. The Equal Employment Opportunity Commission in the United States (“EEOC”) addresses all charges of discrimination, harassment, and retaliation under Title VII, the United States’ broad federal employment law prohibiting discrimination and harassment on the basis of a protected




characteristic.1 In a recent discussion of retaliation charges, a paper provided by the EEOC noted that retaliation findings had now outstripped charges of discrimination and harassment, and that “[i]n a large number of these cases, it is common for an original discrimination allegation (on a basis other than retaliation) fail to establish a violation of the law, but the subsequent retaliation allegation results in a discrimination finding.”2 Retaliation is a real and present concern across the broad spectrum of complaints and disclosures an employee may make.

The EEOC’s paper goes on to note that particular organisational structures and manager personalities are more likely to create an opportunity for retaliation to occur. To combat retaliation, a multi-faceted approach should be taken. Changing the law is not enough.

The EEOC provides several examples of actions organisations and managers should be mindful of to avoid retaliation. These include avoiding reactive behaviour, like denying certain benefits of employment provided to others, and not discussing allegations publicly. However, it also discusses the importance of regular, ongoing training for managers and covered organisations that is specific to the organisation’s nature and culture. Training, along with greater awareness and education initiatives, and legislative change provides a multi-faceted approach to addressing retaliation.

With respect to Problem 5 identified in the Commission’s consultation document, FairWay does not make specific submissions on whether there should be a mandatory reporting requirement. However, if there were, FairWay believes that the Commission should consider limiting reporting to how many protected disclosures an organisation has received in the defined reporting period as well as the process outcome for each disclosure (i.e., no action taken, action taken, etc.). This would bring the Act in line with reporting obligations in other sectors. For example, Retirement Village operators are required to report on complaints received, complaint resolution time, and complaint outcomes. This would ensure that there is greater transparency about the number of protected disclosures made each year, which can provide greater confidence in the process; would encourage a “speak up” culture, which would also indirectly support measures to prevent retaliation; and would not be overly onerous for covered organisations or create an environment where organisations might suppress disclosures for fear of reputational risk and harm.

4. In your view, what other problems and challenges should be considered? Where possible, please provide evidence or information to support your view.

Please see FairWay’s response to Question 3, in particular with respect to retaliation. FairWay believes that the Commission should consider mandatory training requirements for management of covered organisations. This would be in addition to current requirements under s. 11(3) of the Act.

1 The EEOC also considers charges of discrimination under other federal employment laws, each with differing provisions for retaliation. 2 Retaliation: Making it Personal, https://www.eeoc.gov/laws/types/retaliation considerations.cfm (accessed on 26 November 2018).




5. How could these problems (either as outlined here or in your answer to the previous question) affect different groups of people in New Zealand?

FairWay believes that legislative changes can only achieve so much, particularly in New Zealand’s vibrant, multi-cultural business environment. Different cultures will have differing responses to witnessing serious wrongdoing—particularly if perpetrated by a superior. Further, there may be a general reluctance to raise issues that have greater impact for certain groups of people. This means that legislation alone cannot be the answer. There should be a multi-faceted approach to addressing the issues raised in the Commission’s consultation document, which includes training, awareness and education initiatives, and the potential for legislative change.

6. How urgent is the need for change?

FairWay believes that it is a good time for the Commission to consider ensuring better accessibility, clarity and transparency of the Act’s process and protections.

FairWay notes that changes made to the Act may want to be considered in a staged way to better measure the effectiveness of specific changes.

Options for change 7. What other non-legislative tools could we use to improve how the regime

works?

Please see FairWay’s answer to Question 3, particularly with respect to retaliation provisions and manager training. See also FairWay’s response to Question 19.

8. How likely is it that the range of non-legislative tools (either outlined here or in your answer to the previous question) could result in greater benefits than those discussed here?

FairWay believes that the best processes are ones that are supported through a multi-faceted approach, as discussed in response to Questions 3 and 5. You need both the formality of legislative protections and requirements along with less formal mechanisms for redress and prevention.

For example, the EEOC recently released its 2016 Select Task Force on the Study of Sex Harassment in the Workplace (“EEOC 2016 Select Task Force Report”).3 While not about protected disclosures, FairWay believes that the study is a helpful comparison. Part 2, Section C of the EEOC 2016 Select Task Force Report noted employee responses to harassment based on several empirical studies. In the vast majority of cases, employees

3 EEOC Select Taskforce Study, https://www.eeoc.gov/eeoc/task force/harassment/report.cfm# Toc453686303 (accessed 26 November 2018).




did not access formal processes for reporting harassment. Often this was for fear of retaliation.

From FairWay’s perspective, legislation can only do so much. There must be a concomitant non-legislative approach that includes awareness, education, and training.

9. Do you think we need to change the law?

Yes

No

Why do you think this?

FairWay believes that greater clarity and consistency of process—both within covered organisations and as part of external disclosure processes – will create the best environment for employees of covered organisations to feel safe and comfortable to make protected disclosures.

10. In your view, which option will be most effective in achieving the desired outcomes? Why do you think this?

Option 1

Option 2

Option 3

Option 4

Option 5

None of the options

FairWay believes that certain aspects of Options 1-4 provide the greatest opportunities for meaningful change to the culture of protected disclosure in New Zealand, but not all were incorporated into a single option. Fairway:

• supports Option 4, for the reasons stated in previous answers, particularly our answer to Question 3;

• supports Option 3 in the sense that it believes that the Act currently provides a point of call for advice in s. 6B (Role of Ombudsmen in providing information and guidance), which could be expanded or differently defined. FairWay does not make submissions on whether this should be strengthened into a single point of call.




FairWay further does not make submissions on whether there should be an oversight body;

• supports several aspects of option 1, including issuing guidance to support legislative reform; requiring all organisations to have good protected disclosure procedures in place (including specifying what those procedures must include); strengthening protections for people who speak up, consistent with our previous submissions on retaliation provisions; and clarifying the path to compensation;

• does not address or make submissions on any other aspects of the suggested options.

In summary, FairWay supports changes that:

• provide clarity, transparency and accessibility of the protected disclosure process; • provide for system-wide understanding of when protected disclosures are being

made and how they are dealt with; • maintain the importance of organisational involvement in the protected disclosure

process; • strengthen protections for employees making protected disclosures, and • support a multi-faceted approach to change that fosters a safe “speak up” culture.

11. Are there any other ideas that you think we should consider to address the

problems with the current system? If yes, please provide details.

Please see FairWay’s previous responses, particularly with respect to retaliation provisions and raising awareness and a safe “speak up” culture.

Build strong foundations 12. What do you see as the main benefits, costs and risks of this option?

Please see FairWay’s responses to Question 10.

13. What changes could be made to improve the effectiveness of this option?

Please see FairWay’s response to Question 10.

14. Can you think of any examples of serious wrongdoing that should be covered by the Act, but would fall outside the proposed definition? Please provide specific examples, where possible.

FairWay does not make submissions on this point.

15. What do you think the impact of new requirements for organisations would be on small and micro-businesses and non-governmental organisations? Do you think an exemption should apply? If yes, please provide details.




FairWay notes that there must always be a balance between the benefit and burden of regulation. Small and non-governmental businesses would be more heavily impacted by these changes. First, their structures will not operate in the same way as a public agency, which would potentially require changes to their operating model. Second, most would not have a protected disclosure process and policy in place, which will require a degree of work beyond compliance with proposed legislative changes. Third, small businesses are likely to be disproportionately affected compared to large businesses and public agencies by any legislative requirements proposed by the Commission.

16. How would new obligations for employers work alongside existing requirements (e.g. health and safety, employment relations)?


17. What support would help organisations fulfil their obligations? Where possible, please provide specific examples.

Clear guidance documents, including best-practice (with examples for a variety of organisations and sizes); training tool-kits; awareness campaign tool-kits; and opportunities for organisations to discuss issues (potential and real) in a safe way with the Commission.

18. In your view, what is the necessary lead-in period for organisations in your sector to implement the changes under this proposal? Where possible, please tell us how you have arrived at this timeframe.

The timeframe required depends on the scope of changes that are ultimately made, including which types of organisations are captured and whether the definition for serious wrongdoing is changed. In general, however, more time is better, particularly if coupled with non-legislative supports.

Allow people to report concerns to an external body at any time

19. What do you see as the main benefits, costs and risks of this option?

FairWay submits that an external body could resolve many of the clarity and simplicity issues identified by the Commission. FairWay also submits that this process potentially deprives or chills the organisation’s ability to resolve the issue and maintain a bond of trust with the disclosing employee. While this option includes that the issue can be referred back to the organisation, the option does not provide information about whether and how the organisation would be involved in that referral. Nor does it address the risk to the organisation if an employee is able to make the complaint without using an internal process first. To be clear, FairWay also agrees that it is appropriate and necessary to make a protected disclosure to someone other than the organisation involved in many cases. However, FairWay also believes that this should be balanced against an organisation’s need




to be able to show employees that it is safe to speak up and to work towards resolving the issue.


FairWay does not make submissions on this point, except as it has in response to Question 19.

21. Do you think we should consider any limitations on people reporting concerns directly to an appropriate authority? If yes, please provide details.


Establish stronger oversight 22. What do you see as the main benefits, costs and risks of this option?

Please see FairWay’s responses to Questions 3, 4, 5, and 10.



24. In your view, what specific functions should the oversight body, or bodies, perform?


Introduce monitoring for the public sector 25. What do you see as the main benefits, costs and risks of this option?



Please see FairWay’s response to Questions 10.

27. In your view, what should the public sector be asked to report on?

Please see FairWay’s responses to Questions 3 and 4 as well as FairWay’s responses to Question 10.

28. How could we use this information to drive improvements?


Introduce monitoring for all organisations




29. What do you see as the main benefits, costs and risks of this option?

Please see FairWay’s responses to Questions 10 and 15.



31. Do you think small businesses and community, voluntary, and not-for-profit organisations should be exempt from the reporting obligations that would be introduced under this option? Please provide a reason for your answer.

Please see FairWay’s responses to questions 3, 4, 5, 10, and 15.

32. In your view, what should employers be asked to report on?


33. How could we use this information to drive improvements?


Changes we are not proposing 34. Do you agree with our rationale for not introducing changes in some areas?

Why do you think this?

FairWay does not make specific submissions on this point. Please see the summary of our submissions at the beginning of this document.

35. Are there any other ideas that you think we should consider to encourage people to report concerns? If yes, please provide details.

FairWay does not make specific submissions on this point. Please see the summary of our submissions at the beginning of this document.

36. Are there any other ideas that you think we should consider to improve compliance with the law? If yes, please provide details.

FairWay does not make specific submissions on this point. Please see the summary of our submissions at the beginning of this document. See also our submissions on the retaliation protections and multi-faceted approach to supporting protected disclosures.

37. Do you have any other feedback or comments that you would like us to take into account?

FairWay has no other submissions to make at this time.


State Services Commission Parliament Buildings

December 7, 2018

Submission on the Review of the Prote~ ed Disclosures Act 2000

This submission is from: SAFE Inc. PO Box 28110 Kelbmn Wellington, 6150

SAFE wishes to appear before the committee to speak to om submission.

Please contact Chief Executive Officer Debra Ashton

Introduction

SAFE receives a substantial number of reports each year in relation to animal cruelty. As SAFE does not have investigatory powers, it can only advise whistleblowers to report to the appropriate authority, which is either the Ministry for Primary Industries (“MPI”), the Society for the Prevention of Cruelty to Animals (“SPCA”) or the Police. However, as the Protected Disclosures Act 2000 (the “Act”) does not guarantee confidentiality, some whistleblowers are hesitant to report to MPI. SAFE guarantees the confidentiality of whistleblowers and serves as a sort of intermediary by passing on details of animal cruelty to MPI without disclosing any of the whistleblower’s personal information. SAFE is unable to provide the information that its conclusions in this submission are based on, as in order to protect the whistleblowers their reports cannot be made public. However, most have been passed onto MPI.

It is in the public interest for the law to be complied with. This includes the Animal Welfare Act 1999. SAFE has found that reports of animal cruelty often include reports of other law-breaking. In some cases, there are reports of domestic violence. The link between domestic violence and animal abuse has been documented through research carried out in New Zealand.1 The breach of environmental laws is another issue often reported alongside animal cruelty, such as the dumping of effluent or dead animals into waterways.

The Act should be strengthened to encourage people to come forward with legitimate complaints of cruelty and law-breaking and make it easy for them to do so. SAFE has stressed the need for this, in addition to the need to offer protection of informant confidentiality and the need to provide support for workers to find another job if required.

The Protected Disclosures Act 2000 - Issues

The main issues with the Act are:2

1. whistleblowers are not guaranteed confidentiality;

2. there are no penalties for those who fail to keep the identity of a whistleblower confidential or for mistreating a whistleblower because they have made a disclosure;

3. whistleblowers must make the disclosure to the appropriate person within their own organisation before an appropriate external authority;

1 Michael Roguski Pets as Pawns: The Co-Existence of Animal Cruelty and Family Violence (RNZSPCA and NCIWR, March 2012). 2 SAFE’s submission addresses issues within the Act from the perspective of animal abuse, however, SAFE believes that the changes it proposes will benefit all whistleblowers, not only those reporting animal abuse. SAFE advocates for the protection of all animals, and therefore its values include the protection of humans.

4. it is limited to employees;

5. there is no obligation for organisations to investigate alleged wrongdoing;

6. there is no support provided for whistleblowers; and

7. whistleblowers can have a lack of confidence in appropriate authorities.

1. Confidentiality

1.1 Confidentiality is the most fundamental requirement for an effective Act. Confidentiality is what protects people. However, under the Act, whistleblowers are not guaranteed confidentiality. The Act states that a person to whom a disclosure is made must use their best endeavours not to identify the whistleblower.3 This is not absolute and is subject to exceptions.4

1.2 SAFE has concerns around the lack of protection of whistleblowers. Whistleblowers living in small farming communities are often more vulnerable than others who come forward with information. This is because, in such communities, people are more likely to know each other. For example, imagine there is a farm with one farm manager and only one worker down a quiet street. In that situation, if a complaint is made to MPI about the farm manager, MPI telling the farm manager that there has been a complaint effectively undermines confidentiality, even if MPI does not disclose the name of the complainant. Many employees wait until they have found a new job and have left their current job before reporting their concerns about animal cruelty, due to these risks. This can sometimes mean that the information is too old to be useful to authorities in an investigation and can leave animals to suffer in the meantime. Accordingly, there must be a statutory duty to ensure confidentiality.

1.3 Currently, whistleblowers who make a disclosure anonymously are not protected by the Act and the Review of the Protected Disclosures Act 2000 (“the Review”) is not proposing it. The Review states that the allowance of anonymous disclosures will make investigations more difficult to carry out and that it may increase the perception that speaking out is something to be feared.5 It should be noted that there is evidence, including that which has been provided to SAFE, that some people do already fear making a complaint due to genuine concerns for their safety. It is SAFE’s view that the allowance of anonymous disclosures would result in people being less fearful of speaking out.

3 Protected Disclosures Act 2000, s 19(1). 4 Protected Disclosures Act 2000, s 19(1)(a),(b). 5 State Services Commission Protected Disclosures Act Review Consultation Document October 2018 at 19.

1.4 The Review also states that it could lead to a rise in false or vindictive allegations.6 However, currently the Act only applies to disclosures made by those who believe on reasonable grounds that the information is true or likely to be true.7

2. No Penalties

2.1 There are currently no penalties for those who fail to keep the identity of whistleblowers confidential.8 At present, the only remedy for those who suffer from having their identity revealed is compensation under the Employment Relations Act 2000 (the “ERA”) or the Human Rights Act 1993 (the “HRA”). The burden is on the complainant and they have to prove their allegations. By contrast, there are penalties in the Australian Commonwealth which have a maximum penalty of two years imprisonment.9 Penalising those who fail to keep the identity of whistleblowers confidential is likely to increase the disclosure of wrongdoing.

2.2 The State Services Commission (“SSC”) Report identified the lack of penalties as a weak area in the legislation.10 Despite this, the Review is not considering penalties for employers who breach obligations.11

2.3 The Act does not specifically prevent a person from being mistreated for making a disclosure under the Act.12 It would be clearer and easier for people if this was explicitly included in the Act, as well as already being in the HRA. The current remedies for mistreatment are those that already exist under the ERA and HRA.13 These are onerous processes, and these remedies are inaccessible to most people. Although the mediation service is free, if mediation under the ERA and HRA is unsuccessful, lodging a claim can be time-consuming and costly. It would be better if whistleblowers could simply make a complaint to the Ombudsman or a specialised body that could investigate.

3. Appropriate Authority

3.1 A protected disclosure can be made to appropriate authorities. The Ministry for Primary Industries is currently an appropriate authority under the Act, as it is the head of a public sector organisation.14 Option 1 of the Review proposes to remove the “head of every public sector organisation” as an appropriate authority. The Review states “There does not appear to be a strong rationale for someone to go to the head of a public sector organisation rather than

6 State Services Commission, above n5, at 19. 7 Protected Disclosures Act 2000, s 6(1)(b). 8 SSC Report: Protected Disclosures Act 2000 December 2017 at 4. 9 SSC Report, above n8, at 6. 10 SSC Report, above n8, at 4. 11 State Services Commission, above n5, at 19. 12 State Services Commission, above n5, at 7, 8, 10. 13 State Services Commission, above n5 at 7. 14 Protected Disclosures Act 2000, s 3.

one of the named authorities which have a clear remit to investigate the types of wrongdoing covered by the Act.”15 In cases of animal cruelty, it is MPI who has a clear remit to investigate. The removal of appropriate authorities would clarify at the expense of options for different circumstances. This appears to be a desultory way to achieve clarity. 3.2 SAFE prefers option 3 of the Review, which proposes an oversight body which people can report directly to or can be used to direct people to the appropriate authority.16 It is accepted that this will cost, however, the development of resources to make it clear which authority is appropriate to report to could reduce this cost. The resources could give examples of wrongdoing and which authority is appropriate to go to. 3.3 The SSC Report recommended that “The legislation needs to provide a clear explanation about the roles of different external “appropriate authorities” and when/how to use them to make it easier for employees to navigate.”17

3.4 A second issue in relation to appropriate authorities relates to when they can be contacted. Currently an employee must make the disclosure to an appropriate person within their organisation before going to an appropriate authority. SAFE supports the Review’s proposal to enable whistleblowers to report to an appropriate authority in the first instance.18 Farming is unlike other employment structures. Often the alleged abuser is the employer of the whistleblower and there is no one else to report to. This means that there is usually no appropriate person within their own organisation to make a disclosure to. The ability for employees to make a report to an appropriate authority first and be protected is essential.

4. Employees Only

4.1 The Act is currently limited to employees.19 The definition of employee is broad and includes former employees and contractors.20 However, many of the whistleblowers who have reported animal cruelty to SAFE are not employees, such as neighbours and members of the public. Although non-employees such as a member of the public driving past a dairy farm may not carry the same personal risk as an employee, non-employees such as neighbours can have serious safety concerns, given that they live nearby. Therefore, it is not only employees who require protection.

4.2 The Act only envisages issues such as loss of employment or discrimination in the workplace. However, risks to whistleblowers can extend far beyond their employment to their personal safety. SAFE has evidence that some non-employee whistleblowers have received

15 State Services Commission, above n5, at 13. 16 State Services Commission, above n5, at 16. 17 SSC Report, above n8, at 5. 18 State Services Commission, above n5, at 15. 19 Protected Disclosures Act 2000, s 6(1). 20 Protected Disclosures Act 2000, s 3.

death threats from the alleged animal abuser. The Act could be widened to include any person who is at risk, rather than only employees. 4.3 SAFE supports the SSC Report recommendation that consultation should include “whether protections should be extended to a wider range of people with “inside information” (e.g. stakeholders, clients and members of the public)”.21

5. No Obligation to Investigate

5.1 There is no legal obligation for an organisation to investigate the allegations, or report back, or to do anything at all.22 The Review is proposing for organisations to be legally required to take action, investigate information and report back, which is positive.23

5.2 Many of the people who report animal cruelty to SAFE have already made reports to MPI or SPCA. Some have contacted other organisations such as MPI a number of times. Many receive unsatisfactory responses, which is why they turn to SAFE.

5.3 One of the options the Review is proposing is monitoring for the public sector.24 Monitoring would incentivise public sector organisations to investigate reports of wrongdoing.

6. No Support for Whistleblowers

6.1 Currently there is no support for whistleblowers. Some may need counselling as a result of the abuse they witnessed and/or threats they received. Farm workers may also need help finding another job.

6.2 The Australian Parliamentary Joint Committee’s report has recommended the establishment of a new ‘Whistleblower Protection Authority’ with broad powers to provide direct support to whistleblowers.25

6.3 New Zealand could establish its own Whistleblower Protection Authority, which could not only direct whistleblowers to the appropriate authority and receive reports, but could also provide support to whistleblowers by way of free counselling and general assistance, including employment-related support.

21 SSC Report, above n8, at 6. 22 State Services Commission, above n5, at 7,10. 23 State Services Commission, above n5, at 13. 24 State Services Commission, above n5, at 17. 25 SSC Report, above n8, at 5.

6.4 It would be necessary for the Whistleblower Protection Authority to operate in a people-friendly manner, to ensure that whistleblowers are effectively and efficiently guided throughout the process. This system would need to be backed by a strong public education programme so that people can have confidence in the protection the authority offers.

7. Whistleblowers Have a Lack of Confidence in Appropriate Authorities

7.1 Some whistleblowers encounter inaction by the appropriate authority and some have made reports of animal cruelty without sufficient action being taken by MPI.

7.2 The lack of confidence in MPI by whistleblowers is well-founded. MPI does not have sufficient resources to carry out effective investigations of farms and they fail to prosecute breaches of the Animal Welfare Act. For example, in 2016 Farmwatch visited a colony farm in the Waikato and found birds that were dying, or had died, as a result of being trapped in parts of cages. Farmwatch alerted MPI, who took ten days to visit the farm. MPI found unacceptable conditions but decided not to prosecute.26

7.3 An obligation to investigate and a monitoring requirement may help address this issue. If MPI had an obligation to investigate and were monitored by way of providing an annual report (which included all the complaints received by MPI, the action taken by MPI and the outcome), MPI may be more motivated to take action, which in turn could increase people’s confidence in MPI.27

Conclusion

The purpose of the protected disclosures regime is (i) to facilitate the disclosure and investigation of matters of serious wrongdoing, and (ii) to protect employees who make disclosures of information about serious wrongdoing.28 It is submitted that in its current version, the Act fails to meet its own purpose for the reasons mentioned above.

SAFE would like to see the following additions and changes to the Act:

1. confidentiality for whistleblowers; 2. penalties for those who fail to keep confidentiality or mistreat a whistleblower; 3. the removal of the requirement that employees report to someone inside their

organisation first, as well as the creation of an oversight body that people can report to and request advice from;

4. the extension of the Act to protect any persons with information, not just employees;

26 https://www.stuff.co.nz/business/78670962/countdown-pulls-heyden-farms-eggs-after-shocking-colony-caged-hens-video 27 This may require for funding for MPI, which is outside the scope of the Act and therefore this submission. 28 Protected Disclosures Act 2000, s 5.

5. the alteration of the Act to place an obligation on those receiving the complaint to undertake a timely investigation; and

6. the creation of a ‘Whistleblower Protection Agency’ to provide confidential support to whistleblowers, including but not limited to free counselling and finding new employment.

We believe that taking these actions will help to address and alleviate the lack of confidence that whistleblowers currently experience when they contact MPI in regard to animal abuse.

r::i?I Privacy Commissioner \CJ Te Mana Matapono Matatapu

Privacy Commissioner's submission on Protected Disclosures Act review

Executive summary

1. I am pleased to comment on the State Services Commission 's (the Commission 's) review of the Protected Disclosures Act 2000 (the Act) . As New Zealand's Privacy Commissioner my primary interest is how the Act treats individuals' personal information when they make or are otherwise involved in protected disclosures.

2. I support the Commission's efforts to ensure the protected disclosures regime is clear for people to navigate and encourages them to expose serious threats to the public interest. In my submission I make a number of general comments on the options the Commission is proposing.

3. In my submission I also make some observations on confidentiality that go beyond the Commission 's proposals. My overarching recommendation is that the Commission should undertake a first principles analysis to establish whether confidentiality for people who make protected disclosures is valuable, and whether it is viable. This is an important question that the Commission's review appears to assume but has not explicitly examined.

4. If the Commission concludes that confidentiality should be protected under the Act, the protections under section 19 require a clear complaints mechanism. The Act is currently silent as to how an individual can seek to enforce these protections. This causes confusion for complainants, and ambiguity for my Office as to the relationship between the Act and the Privacy Act. Alternatively, if the confidentiality protections were repealed the Privacy Act would still safeguard individuals' information.

5. Finally, I support the Commission's proposal to not extend the Act's protections to people who make allegations directly to the media. Doing so would lead to the unreasonable exposure of personal information about individuals involved in protected disclosures to a potentially broad audience.

Cp ments on the Commission's proposed options

6. The Commission is consulting on various cumulative (rather than alternative) options to amend the Act. It acknowledges that so far, its review has been informed by limited information about how people are using the Act. I hope that public consultation will provide further evidence on how well the Act is currently working and the likely costs and benefits of the Commission 's proposals.

P/1599 /A605488

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Option 1: minimum changes to make the Act fit-for-purpose

7. The Commission proposes various amendments it considers are necessary to remove confusion and ensure organisations have good procedures in place:

• amend the definition of "serious wrongdoing" to exclude bullying and harassment, and include corrupt or irregular use of money across all sectors

• require all organisations to have internal procedures for protected disclosures ~

• list forms of retaliation in the Act and require organisations to minimise the risk of them occurring

• clarify the Act's existing links to compensation mechanisms under the Human Rights Act 1993 and Employment Relations Act 2000.

8. In general, these amendments should usefully clarify when people can use the Act and what protections they can expect to receive.

9. Several of these amendments would lead to new or extended obligations for organisations, especially for the private and not-for-profit sectors. The Commission notes the regulatory system will need to support smaller organisations with the resources and knowledge to comply.

10. The Privacy Act and the work of my Office offer seful insights in this respect because the Privacy Act applies to all agencies operating in New Zealand. For example, we offer free and accessible training, a knowledge database, a privacy statement generator tool and enquiries service.

Option 2: allowing people to make protected disclosures directly to an appropriate authority at

any time

11. The Commission proposes to amend the Act so that people can make a protected disclosure to an appropriate authority at any time, without having to go through their organisation 's internal procedures.

12. In my view, the Commission should consider this question in the context of the whole lifecycle of a protected disclosure. In the first instance, many protected disclosures are likely to be best handled internally. The system can support this efficiency by promoting internal procedures and cultures that inspire employees' trust and confidence.

13. If the Act allows employees to report directly to an appropriate authority as a matter of course, this could promote unrealistic expectations that their disclosures will be handled independently of their organisation. An appropriate authority that receives a protected

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disclosure may well refer the matter straight back to the organisation . This could cause surprise and confusion for employees.

Option 3: a single "oversight body" to provide all sectors with support and guidance

14. The Commission sets out a high-level proposal for a new oversight body that would provide education , guidance and coordination for employees and organisations on protected disclosures.

15. Any new oversight function should support the system being accessible and user-focused. To avoid additional complexity, the legislative arrangements would need to clearly define responsibilities , complaints pathways and referral mechanisms across the various agencies that are already involved in protected disclosures such as the Ombudsman and the Human Rights Commission .

Options 4 and 5: requiring organisations to report on protected disclosures

16. The Commission proposes to require organisations to report on the number of protected disclosures they receive and investigations they undertake. Option 4 would require reporting in the public sector and Option 5 would extend the requirements to all organisations.

17. Reporting would provide the Commission with some of the missing evidence on how the scheme is operating. The Commission has suggested it would need to work through any privacy impacts attached to reporting requirements. My Office can support officials with this privacy analysis if these proposals progress.

Comments on the Act's confidentiality protections

The Commission should exa~ e eonfidentiality on a first principles basis

18. The Commission does not propose to amend the confidentiality protections under the Act. My overarching recommendation is that the Commission undertakes first principles analysis to establish whether confidentiality for people who make protected disclosures is valuable, and whether it is viable .

19. Section 19 of the Act requires every person to whom a protected disclosure is made or referred to use their best endeavours to avoid identifying the person who made the protected disclosure. There are exceptions if they reasonably believe disclosing identifying information is essential for an effective investigation , to prevent serious risk to public health or public safety or the environment or having regard to the principles of natural justice.

20. The section 19 protections are of a different character to the normal privacy rights employees have under the Privacy Act. The high threshold of confidentiality in section 19 aspires to balance the public interest in encouraging people to expose serious wrongdoing with other interests, including supporting effective investigations and natural justice.

21 . It is important to note that confidentiality is not a standalone objective of the Act. It is one measure to support the Act's core aim, that a person who goes outside of their organisation

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to make a good faith disclosure alleging serious wrongdoing does not suffer adverse consequences, including retaliation and discrimination.

22. In practice, confidentiality can be difficult to preserve for an employee who alleges serious wrongdoing in their organisation . Their identity could be obvious to their colleagues, especially if they have been concerned about the conduct for some time. Before reporting to an appropriate authority, they are likely to have escalated their concerns on multiple occasions under their employer's internal procedures.

23. If an organisation does disclose a person's identity after they make a protected disclosure the Act is silent as to how they can seek to enforce the protections under section 19. This causes confusion for complainants, and ambiguity for my Office as to the relatjonship between the Act and the Privacy Act.

Relationship between the Act and the Privacy Act

24. There is no mechanism for an employee to seek review of how an agency has complied with the confidentiality protections in the Act. This is not the case for other core protections under the Act that do have complaints avenues. An individual can complain to the Human Rights Commission that they have been treated less favourably because of their protected disclosure 1, or raise a personal grievance if they experience retaliation2 .

25. The Ombudsman may review and guide public sector organisations' investigations into protected disclosures under section 158 of the Act and provide advice on the confidentiality protections under section 19(3)(b). This limited role does not create a complaints mechanism. The Office of the Ombudsman has declined to consider individuals' complaints that an agency has identified them in breach of section 19 and advised their only option is to complain to my Office under the Privacy Act.

26. When my Office receives complaints from individuals who have made protected disclosures we face considerable ambiguity about how we can respond. Section 7 of the Privacy Act provides for other pieces of law to override the general privacy principles. This means that if an agency complies with specific legislation that says personal information shall be used in a certain way, such as section 19 of the Act , I cannot find that they have interfered wit an individual's privacy under the Privacy Act.

27. The Act provides no mechanism for determining whether an agency has complied with section 19. In the absence of any referral options , we investigate whether there has been an interference with complainants' privacy under the Privacy Act. An interference with privacy requires the agency to have breached one of the twelve information privacy principles and the individual to have suffered harm3.

28. In the context of a protected disclosure, the privacy principles set a lower threshold and provide an agency with more flexibility to disclose personal information compared to

1 Section 66( 1 )(a) Human Rights Act 1993 2 Section 17 Protected Disclosures Act 3 Section 66(1) Privacy Act

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section 19 of the Act. Principle 11 of the Privacy Act covers disclosure of personal information. It requires an agency that holds personal information to not disclose it unless it reasonably believes an exception to that principle applies. The most relevant exception in a protected disclosure investigation is principle 11 (a), which allows an agency to disclose personal information if it believes on reasonable grounds:

(a) that the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained.

29. In several cases my Office has formed the view that an agency investigating a protected disclosure could rely on principle 11 (a) to disclose identifying informatio about the individual who made the protected disclosure. This is because an individual who makes a protected disclosure provides their information for the purpose of enabling an investigation. This means an agency will often be justified in disclosing the personal information the individual has provided, including their identity, to further an investigation.

30. Another potentially relevant exception is principle 11(d), which allows an agency to disclose personal information if it believes on reasonable grounds that the individual has authorised the disclosure. An agency might reasonably believe an individual has authorised disclosure in a verbal conversation or where the employee agrees to internal procedures that require them to be identified as pan of any investigation.

31 . An agency might also be able to identify a person for similar reasons under section 19 of the Act, but the tests are far more onerous. Disclosure needs to be "essential" to an investigation or natural justice. Authorisation requires written consent. These concepts are not reflected in the privacy principles.

If the Commission concludes that confidentiality is valuable, the protections require a clear a complaints mechanism in the Act

32. I am concerned that there is no clear mechanism to ensure the confidentiality threshold that has been set by Parliament is being applied by agencies. If individuals cannot seek review of how the confidentiality protections are applied to their disclosures this weakens their effectiveness and integrity.

33. The Commission's review has ruled out amending the confidentiality protections -specifically, it has ruled out allowing anonymous complaints or introducing penalties for non-compliance.

34. If the Commission favours retaining the confidentiality protections it should ensure organisations' compliance is reviewable and enforceable through a clear complaints mechanism in the Act. This mechanism could be operated by the Commission's proposed new oversight body.

35. My recommendation would support the Commission 's policy objectives for the Act, including clarity and fairness. If organisations can be seen to be complying with the protections this would also encourage others to help expose serious threats in the public interest.

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36. The mechanism would not necessarily require penalties. While penalties are a useful incentive to address serious and deliberate non-compliance, the mechanism could be based on alternative dispute resolution. This is the case for our complaints process under the Privacy Act, which resolves many disputes through facilitating mediation and settlements.

If the confidentiality protections were repealed the Privacy Act would still safeguard individuals'

information

37. The Commission may conclude that confidentiality is not practicable under the Act. If the protections in section 19 were repealed, the safeguards in the Privacy Act would still apply to people who make protected disclosures.

38. These safeguards would require agencies to deal with personal information consistently with the purpose for which it was collected, including to further an investigation. Individuals would have rights to complain to my Office if they considered the if ·nformation had been used or disclosed in breach of the Privacy Act.

39. If the Commission proceeds in this direction it could focu on strengthening the Act's protections against discrimination and retaliation, to minimise the risks of harm to people if they are identified in their organisations as having made a protected disclosure.

Protected disclosures to the media

40. I support the Commission's proposal to not extend the Act's protections to people who make allegations directly to the media.

41. The media play an important role i.o uncovering corruption. However, allowing protected disclosures to the media could expose considerable personal information about individuals involved in protected disclosures to a broad audience. I also consider this option could exacerbate fairness issues. The person reporting to the media would gain the benefit of the confidentiality protections while others involved would have far less control over their information.

Conclusion

42. I trust m/ comments will assist the Commission with its review. My staff are available to discuss our recommendations in detail. Officials can direct further queries to Michael ~ Manager Policy and Technology at _, _(2_)(_a_) p_n_·v_ac_y _______ __,,

J hn Edwards Privacy Commissioner

NEW ZEALAND BANKERS ASSOCIATION Level 15, 80 The Terrace, PO Box 3043, Wellington 6140, New Zealand

TELEPHONE +64 4 802 3358 EMAIL [email protected] WEB www.nzba org.nz

Submission to the

State Services Commission on the

Review of the Protected Disclosures Act 2000 14 December 2018

About NZBA

1. NZBA works on behalf of the New Zealand banking industry in conjunction with its member banks. NZBA develops and promotes policy outcomes that contribute to a strong and stable banking system that benefits New Zealanders and the New Zealand economy.

2. The following seventeen registered banks in New Zealand are members of NZBA:

• ANZ Bank New Zealand Limited

• • • • • • • • • • • • • • •

ASB Bank Limited

Bank of China (NZ) Limited

Bank of New Zealand

MUFG Bank, Ltd

China Construction Bank

Citibank, N.A.

The Co-operative Bank Limited

Heartland Bank Limited

The Hongkong and Shanghai Banking Corporation Limited

Industrial and Commercial Bank of China (New Zealand) Limited

JPMorgan Chase Bank, N.A. -~ Kiwibank Limited ~,

Rabobank New Zealand Limited

SBS Bank

TSB Bank Limited

• Westpac New Zealand Limited

Background

3.

4.

NZBA welcomes the opportunity to provide feedback to the State Services Commission on its review of the Protected Disclosures Act 2000 (Act) (Review). NZBA commends the work that has gone into the Review and corresponding Options Paper.

If you would like to discuss any aspect of the submission further, please contact:

Antony Buick-Constable Deputy Chief Executive & General Counsel

2

Introduction

5. Our members are committed to supporting a 'speak up' culture across the banking industry. They work hard to continually improve that culture and develop appropriate whistleblowing mechanisms which staff are confident and able to use. In that regard, our members' primary objective is to ensure that staff feel empowered to speak up internally to their people leaders and specialist support teams (such as HR, Risk and Compliance), and that whistleblowing mechanisms are a safety net for staff to speak up in confidence.

6. Against that background, the industry fully supports the Review. As a result of the findings of the Reserve Bank of New Zealand and Financial Markets Authority review of conduct and culture in retail banks, we are re-doubling our efforts on these issues. To that end our members are working to progress industry-wide whistleblowing initiatives in conjunction with this Review.

7. We support clear and user-friendly processes for those seeking to make protected disclosures. We consider that the legislative framework must adequately protect individuals making protected disclosures, while also enabling organisations to effectively investigate and respond to the substance of such disclosures.

8. Subject to some comments, we support options one, two and three set out in the Options Paper. We consider that these options provide clarification around the application of the framework to the private sector and we are supportive of providing additional support for would-be whistleblowers who may prefer not to use the reporting channels within their organisations. In relation to options 2 and 3, we strongly support the recommendation that the appropriate authority or oversight body has the ability to refer a report back to the organisation concerned where that is appropriate (while respecting the individual's confidentiality). We also support the oversight body having a guidance/information provision function as a port-of-call for individuals and organisations alike.

9. Our responses to the options set out the Options Paper are set out below.

Objectives of the Review

10. NZBA agrees with the objectives of the legislation and the picture of what it would look like if the system was working well . We note that these objectives go beyond what can be achieved by leg islation alone and will require engagement across organisations and sectors to create a grassroots culture where speaking up about serious wrongdoing is expected, encouraged, and protected. As an industry, we are supportive of that.

11 . We also agree with the risks outlined. An important part of the process is the investigation and resolution of protected disclosures. The framework must maintain the confidentiality and protection of the whistleblower, while enabling the organisation concerned to investigate and respond. Any suggestion of serious wrongdoing must be properly investigated and the individuals involved must be notified of, and given an opportunity to respond to, the matters raised. This is consistent with the principles of natural justice.

Option One

12. NZBA supports option 1.

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13. NZBA agrees with and supports the benefits outlined in the Options Paper.

14. In particular, we support the introduction of clear definitions and rules so that the law is easier to understand and use. We agree with the proposal to remove references to bullying and harassment from the definition of 'serious wrongdoing' and the reasons for that proposal.

15. We note that the Options Paper proposes to lower the threshold for making a protected disclosure to 'suspicion'. We support the objective underlying this proposal. However, this must be balanced against the importance of ensuring that the framework does not become a proxy for disputes and employees who have exhausted employment relations avenues. Add itionally, there is a risk that a lower standard may encourage the reporting of anecdotal or hearsay matters.

16. Regarding the proposal to include the 'irregular use of money or resources' in the definit ion of 'serious wrongdoing' - we do not agree this should apply to the private sector. That is because 'irregular use' is a highly subjective standard and, in the private sector, accountability for irregular use of money or resources would be to the shareholders/owners. In contrast, there is clearly a public interest in preventing unlawful or corrupt use of money or resources in the private sector.

17. NZBA also supports the proposal that all organisations - including the private sector - must have "good procedures in place for receiving and handling information about alleged serious wrongdoing .. . " noting that these will need to take into account any obligations of confidentiality. To that end, we note that all of our members currently have whistleblower policies in place and that these policies include internal and independent channels for reporting.

18. In respect of lead-in time, this will depend on the nature of the changes to the legislation.

Option Two


20. We agree that this option would be beneficial for people who feel that internal procedures are inadequate, or who fear reprisal. We also consider that this proposal makes the law simpler and clearer for would-be whistleblowers.

21 . We consider that in the first instance it will be appropriate for the relevant authority to triage the report and refer it back to the organisation concerned for investigation in the first instance. As such, the authority's role will be to triage reports, and provide information. If that does not resolve the issue, only then should the authority be empowered to take further steps.

22. Option 2 may, however, create an avenue for the inappropriate escalation of customer complaints. For that reason, it will be important for the authority to establish the link between the individual making the report and the organisation. Additionally, as mentioned above, there is a risk that employees who have exhausted employment relations avenues may seek to utilise this option, or that the lowering of the threshold to 'suspicion' from 'belief' may encourage the reporting of anecdotal or hearsay matters.

4

Option Three


24. We consider that an independent oversight body which is specialist in protected disclosures, with a clear mandate to provide information/guidance and triage disclosures, would be beneficial for both organisations and would-be whistleblowers. We note that an oversight body may also assist would-be whistleblowers in differentiating between reports which are captured by the Act, and those which ought to be escalated to WorkSafe, the Employment Relations Authority, the Human Rights Commission, etc.

25. Although, we note that there is a risk that this option may lead to some duplication, for example, with respect to whistleblowing channels and industry oversight. We would also not support the creation of multiple oversight bodies through statute as, in our view, that would lead to unnecessary complexity. Additionally, there is a risk that some specialist, industry-specific knowledge may be required to effectively triage reports.

26. We also repeat our concerns set out at paragraphs [15] and [22].

Option Four

27. NZBA has no view on option 4.

Option Five

28. NZBA does not support option 5.

29. Applying oversight to the whole of the private sector would create additional costs without significant benefit. That is particularly true of the banking industry which is already subject to extensive oversight by its regulators. This oversight includes some consideration of internal whistleblowing procedures.

5

7 December 2018

By email :

Dear Sir/ Madam,

Review of the Protected Disclosures Act 2000

CPA Australia Ltd ABN 64 008 392 452

Level 20, 28 Freshwater Place Southbank VIC 3006 Australia

GPO Box 2820 Melbourne VIC 3001 Australia

T 1300 737 373 Outside Aust +613 9606 9677 cpaaustralia.com.au

CPA Australia represents the diverse interests of more than 163,000 members working in 125 countries and reg ions around the world. We make this submission on behalf of our members and in the broader public interest.

At the outset, it is important to acknowledge that Australia and New Zealand have each adopted distinctive approaches to the structuring of legislative instruments to protect whistleblowers, though broad underlying principles and intent may be identified . The Minister and Commission will be aware of major reforms afoot in Australia under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 which is currently before the Senate. The approach within these reforms is to strengthen in existing Commonwealth legislation, and introduce into other major bodies of Commonwealth legislation, an improved and expanded scope of whistleblower protections. There will likewise be an awareness that Australia's whistleblower protection regimes span both Commonwealth and State legislative powers with protections interacting with each tier of governments' constitutional powers for enacting specific bodies of public law.

The complexities which have thus ensued in Australia present ongoing challenges in harmonising whistleblower protections across the corporate and public sectors. It is in this context that it is worth drawing attention to comments made in the Explanatory Memorandum to the afore mentioned Bill allud ing to independent evaluations of G20 countries' laws concluding that whistleblower protections in the private sector fall short of best practice. Accordingly, the current tranche of reforms before the Australian parliament are heavily concentrated on provisions within the Corporations Act 2001 (Part 9.4AAA-Protections for whistleblowers), though it is particularly noteworthy that the reforms to strengthening protections are to be replicated in the Taxation Administration Act 1953.

It is likely then that Australia law reform in the whistleblower protection sphere should be viewed cautiously as indicative of how the law in New Zealand might evolve. CPA Australia comments in this submission are made in this context.

It perhaps goes without saying, but whistleblower protection as part of public law should reflect current public sentiment and be developed highly cognizant of societal contexts. As such, CPA Australia’s submission also acknowledges the views reflected on page 11 of the Commission’s consultation document as to areas where there was presently little appetite for reform, though noting that different pathways have been deemed suitable in Australia.

With the above as background, our submission is of general in nature and presented under a number of relevant headings drawn from both page 11 of the consultation document and the table of potential areas of reform (Annex page 13).

Serious threshold test

The embedding of the disclosure protection within specific positive law instruments – the Corporation Act 2001 in the current Australian instance – may arguably lessen the need to consider guarding against mischievous or frivolous allegations of wrongdoing through introducing a ‘serious threshold’ test. This insomuch as the primary law has a whole body of rules specifying actions and inactions which constitute director, officer and corporate misconduct.

It is further worth pointing out that the revised Bill seeks to broaden the subject matter of wrongdoing against which a disclosure qualifies for protection by including as section 1317AA(5)(d) conduct that constitutes an offence against any law of the Commonwealth that is punishable for a period of 12 months or more. This type of tight reference to alleged occurrence of material wrongdoing against specific legislative-based standards of conduct may, we suggest, obviates the need to address unwanted or ill-advised complaint though setting potentially arbitrary or subjective thresholds of seriousness.

Expanding the scope of who can make a disclosure

Those identified as eligible whistleblowers under Part 9.4AAA of the Corporation Act 2001 has been incrementally expanded from the relatively narrow list of officers, employees and persons (natural and legal) and their employees having a contact for the supply of services or goods to the company, to include associates of the now termed regulated entity, relatives and dependents of the identified categories and clarifies recognition of eligibility after cessation of the relationship. The sentiment expressed in the consultation document that the Act’s concentration on protecting insiders is valid. The evolving Australian approach has not extended to protecting ‘casual bystanders’ and it may well be that the New Zealand approach would not be undermined by reference also to ‘associates’ given the nature of complex inter-company or inter-agency relationships around which an incident of wrongdoing might take place.

Allowing anonymous disclosures

As alluded to in the consultation document, Australia has removed the requirement that the discloser provide his or her name when making a protected disclosure (to be repealed s 1317AA(1)(c)), thus allowing now for anonymous disclosures. This amendment has been made after extensive stakeholder consultation and explicit allowance of anonymous disclosures was supported by the Parliamentary Joint Committee on Corporate and Financial Services in the lead up to the development of the Bill. Given this and similar development internationally, CPA Australia suggests monitoring in New Zealand of practices as they unfold, particularly as the consultation draft makes direct reference to allowing companies to choose whether their own whistleblower mechanism makes provision for anonymity. Ultimately, an explicit statutory solution may be necessary if corporate behaviour is seen to lag or be out of step with public and government expectations.

BE HEARD. BE RECOGNISED.

Bad faith/ good faith clauses

A further significant change to provisions within Part 9.4AAA of the Corporations Act 2001 is to remove the requirement that the discloser make the disclosure in good faith (s 1317AA(1)(e)) replacing it with a concept of disclosable matter whereby “the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances in relation to the regulated entity” (s 1317AA(4)). The legislative emphasis has thus shifted significantly towards a focus on an objective reasonable suspicion of wrongdoing unencumbered by potentially subjective inquiry of motive. Views expressed across a series of stakeholder consultations have raised concerns that companies accused of wrongdoing were able to frustrate the progress of a matter based on alleged subjective or collateral motive which, even if present, do not of course negate or lessen the magnitude of the harm or abuse.

CPA Australia acknowledges the reluctance expressed in the consultation document to shift from the present status quo. We observe that the term used is “act in bad faith”, rather than the positive obligation to act in good faith, which may entail a lesser depth of inquiry in to motive. If the evident purpose is to avoid vexatious allegations, it might at some future time be worth amending section 20 of the Act to identify false allegations separate from acting in bad faith. Without reaching a firm view, we suggest this might make it clearer that a potential whistleblower may legitimately feel aggrieved but this, of itself, does not indicate bad faith. Clarity here could encourage more people to come forward with legitimate claims.

Introducing a reward system

CPA Australia’s understanding is that this is not in contemplation as part of current or foreshadowed law reform in Australia. We have supported the reluctance to move in this direction as it sits uncomfortably with what might be seen as social ethos, along with presenting administrative challenges.

Standards for organisational procedures

Again, this is a matter dealt in the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, the rationale clearly articulated in the Bill’s Explanatory Memorandum: “Transparent internal whistleblower policies are essential to good corporate culture and governance” (para. 2.119). Trends in this direction are further reflected in the inclusion in the draft 4th edition of the ASX Corporate Governance Council’s Principles & Recommendations a disclosure of the whistleblower policy along with an outline of how the board or committee of the board is informed of matters raised under the policy (Recommendation 3.3).

A reading of the relevant section of the Bill (s 1317AI) reveal its wide ranging reach across the corporate landscape including both public and large proprietary companies. It is important also to emphasis that the policy must be made readily available to officers and employees of the company. Section 1317AI(5) specifies the content of the whistleblower policy and is largely commonsense addressing expected matters such as the nature of protections, how and to whom a disclosure can be made, and the supports, fair treatment and protections available.

CPA Australia has acknowledged as highly desirable this extension of public sector practice into the private sector. We thus urge the State Services Commission in contemplating similar developments to have them apply with some degree of flexibility and discretion around the size of entity affected.


Protection against retaliatory action

As the consultation document points out, Australian law has a range of robust mechanisms guarding against the victimisation of whistleblowers. In the private sector these have been further enhanced with the inclusion in the existing prohibition of victimisation (s 1317 AC) an extended list of ten forms of detriment to the employee (s t3t7A-C(6)(-a - (in rangin-g frorrrth-e more--obviou , such as dismissal, to the more subtle, such as psychological harm, and concluding with an all embracing "a~y other damage to a person".

Notwithstanding the admirable brevity of the Protected Disclosure Act 2000, CPA Australia suggests it worth considering giving either in the legislative instrument, or associated guidance, a more expansive explanation of the range of prohibited behaviours and to address also both the actual causing and the threat to cause detriment (see Corporations Act 2201 ss 1317AC(1) and 1317 AC(2)).

Some New Zealand specific observations

As in any review proposing change from the status quo it is important to consider the costs and benefits. At this stage, this appears not to have been done. Further, it is essential to consider an action plan as part of the review.

There is a wide array of government agencies already receiving disclosures. These includes the NZ Police, the Serious Fraud Office (SFO), the Commerce Commission, the Financial Markets Authority, Inland Revenue, and the Parliamentary Ombudsman. The two existing organisations we suggest as having the potential to take on more responsibility are the Office of the Ombudsman and the SFO. Both have credible investigative and forensic skills. The Ombudsman has significant strength in non-criminal matters. In contrast, the SFO has its strength in criminal matters. However, neither organisation appears resourced for this additional work.

The financial impact of the potential workload is very difficult to forecast. An investigation, beyond a simple file review, one requiring legal advice, may easily blowout to $200,000 to$500,000. To avoid the potential of a major cost blowout the immediate focus needs to be on clear policy by Government, and at the level of the firm. It is important that any changes to the law are accompanied by an extensive program of education and public information. There must also be a rapid resolution of the bulk of complaints . Experience suggests that most complaints will be groundless or trivial. Many of these will be minor employment matters and capable of resolution through the Employment Resolution service .

There are several government agencies that have already established good policies and practice. For example, Housing New Zealancthas a confidential whistleblowing hotline (0800 TELL HNZ) for people to report supplier fraud/overcharging. So, it's not just whistleblowing on officials, but potentially the suppliers who provide services on oehalf of government. These examples need to be highlighted as best practice and used as models for others in both the public and private sector.

There is concern about impact the proposed changes may have on small business and not-for-profits, who may not have the resources or capability to comply. The cost however of a 'one size fits all solution' may have a proportionately larger impact on such organisations. We suggest that an agency such as the DIA w ith charities eeds to provide public information and education on any reforms in this area, and be a point of referral to a body with more significant investigative powers.

There is a fine line to be walked between the rights of the public, the rights of the organisation and the protection of the whistleblower. To a large extent the whistleblower can be protected if they follow process.

Our view, is that the State Services Commission should address the areas of confusion in the current Act and ensure public sector organisations have good processes in place and in particular introduce new


reporting obligations on protected disclosures to promote transparency and good practice. Further, such obligations should be subject to periodic review every five to ten years.

If you require further information on our views ex ressed in this submission, please contact the undersigned on 12}{afpnvacy ------------------Yours faithfully

Rick Jones Country Head, New Zealand


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Protected Disclosures Act Reform Consultation State Services Commission PO Box 329 Wellington [email protected]

To whom it may concern, Federated Farmers welcomes the opportunity to submit to the consultation on the review of the Protected Disclosures Act by the State Services Commission. Federated Farmers is a voluntary membership organisation that represents farmers in the meat and wool, dairy, arable and goats sector as well as professional rural butchers. We support in its entirety the submission made by Business New Zealand to this consultation. We are a member of Business New Zealand’s Affiliated Industry Group and had the opportunity to contribute to the development of their submission as well as to see the final document prior to submission. Federated Farmers is not aware of the application of the Protected Disclosures Act being an issue in the farming sector. However, as Business New Zealand points out, the very existence is of the Act and its currently limited application to private businesses, is not widely known. We believe this will be reflected in our sector and it is likely that few farming businesses are aware of the Act. In supporting Business New Zealand’s submission, we make two additional comments. These comments are particularly relevant for farming but are likely applicable across all industries that are comprised of many small businesses.

1. Most of the situations outlined in the discussion document that would be subject to a protected disclosure, at least in the farming context, are illegal activities, for example in employment, environment and animal welfare. All these areas have mechanisms for illegal conduct to be reported to the appropriate authority to be investigated. While we accept it is not always easy, all employees of farms can go to the appropriate authorities if they observe illegal conduct.

2. Developing a protocol or policy on how protected disclosures would be handled for

farming businesses would be exceedingly difficult in most instances. Either the farmer, or the Farm Manager, in the case of an absentee landowner, is likely the only appropriate point of contact for internal processes. However, that same person is the person most likely to be the subject of any protected disclosure.

We believe it would be impractical for small businesses like farms to devise and implement protected disclosures policies and the benefit, if any, would certainly not outweigh the additional compliance cost. Nick Hanson Industry Policy Manager

WELLINGTON Wellington Chambers Level 6, 154 Featherstone St PO Box 715 Wellington 6140 T +64 4 473 7269

9(2)(a) privacy

FEDE FAR:t°"ED O F N ■ W z ERS

■ ALAND

07 December 2018

Submission of Multicultural New Zealand, the Federation of Multicultural Councils to the State Services Commission on the Review of New Zealand's Whistleblowing Law to Improve the Protected Disclosures Act 2000

Thank you for the opportunity for input into the review of the Protected

Disclosures Act 2000, specifically in relation to the identified five options for

change and most importantly in relation to the scope.

1. Multicultural New Zealand - The Federation of Multicultural Councils welcomes the review of New Zealand's Whistleblowing Law to help shape improvements to the Protected Disclosures Act to maintain New Zealand’s high standards of integrity.

2. Multicultural New Zealand supports Multicultural Tauranga – Tauranga

Regional Multicultural Council Inc. submission.

3. Based on the above, we do not oppose the five options for change. We

are impressed in general with the thoroughness of the work done by you

in developing the Options for Change, and the extent to which you have

earlier engaged with stakeholders in February and March 2018 to learn

more about the challenges people encounter under the current regime

and the pros and cons of different international approaches.

4. The objective of our submission is to achieve the following:

New Zealand Federation of Multicultural Councils Inc.

PO Box 1409, Wellington 6140, New Zealand ~ Phone: +64 4 916 9177 Fax: +64 4 916 9178 ~

New Zealand Ne •com rs Network

Connecting People

[email protected] • www.multiculturalnz.org.nz • www.newcomers.co.nz

~ Whanau!

N uarahiHou Pathway to Treaty-based

Multicultural Communities

~= Given thing to racism

Clear pathway in ethnic communities to be able to report domestic

violence, forced marriages etc. to an agency, not necessarily the Police.

If the victim has to report the matter to Police, the victim may be

reluctant to do so because of fear of being disclosed as the informant

and making their domestic situation worse.

The Whistle Blowing Act should be widened to include community

groups, sporting clubs and NGOs and should avoid disclosure of who the

victim/informant is.

The Whistle Blowing Act should be widened to include places other than

the work place.

However, we have a number of comments and suggestions for your

consideration:

5. The Protected Disclosures Act 2000 exists to support people to expose

criminal, fraudulent or other serious misconduct in their workplace by

protecting them from unfair dismissal or treatment. However the New

Zealand demographics have drastically changed since 2000 hence the

New Zealand workplace today is more diverse bringing into context

cultural, religion and race: Intercultural Communication and Awareness

of staff and interaction.

6. As highlighted in Multicultural Tauranga – Tauranga Regional

Multicultural Council Inc. submission, we do believe the scope is

“specific about raising matters relating to employment (employee,

contractor, volunteer) within an organisation and relating to activity

suspected of being inappropriate within the workplace”.

7. In view of recently passed Domestic Violence Bill that requires

employers to give victims of domestic violence up to 10 days leave from

work, separate from annual leave and sick leave entitlements. The law

also allows workers who are victims of domestic violence to request

flexible working arrangements and prohibits being a victim of domestic

violence as a ground for discrimination under the Human Rights Act.

TODD ~ FOUNDATION Whanau!




8. The above supports our recommendation that the review of New

Zealand's Whistleblowing Law should not be specific and limited to

workplace. We hereby recommend that the review should include but

not be limited to domestic violence, marrying more than one wife,

forced marriages, underage marriages, mutilation, etc. These are

connected and workplace can be a place that can help to expose serious

threats to the public interest.

9. We also recommend that the Review of New Zealand's Whistleblowing

Law should be extended to include Community Groups, Sport Clubs and

places of learning, to encompass international students at all levels and

accompanying care-givers of international student minors.

10. We do wish to speak to our submission and do I look forward to your

early confirmation that we will be able to speak.

Kind regards,

Pancha Narayanan President, Multicultural NZ

TODD ~ FOUNDATION Whanau!




1

Review Of The Protected Disclosures Act 2000

Submission: by Kay Williams

I wish to confirm that I am happy to have my name made public and that my submission

responses to be made publicly available.

Submission 2018

I wish to contribute my thoughts and experience with the added societal concept of why

whistle blowing as it is termed should hold principals, directives and philosophical

mechanisms that are encapsulated in clear, cogent and convincing legislation. These concepts

are embedded in the consequences we have to one another referred to as obligation with the

added mind set of forethought.

Firstly from a philosophical aspect we are all obliged to correct and amended wrongdiong in

action, deeds and speech due to the ongoing consequences not only to the self but to those to

whom we are obliged, be it employer, colleague or family member. Without such correction

of wrongdoing, deed and speech there are consequences that cannot be foreseen but only felt

in future times. This could be referred to as having foresight.

Secondly this leads to whom do we seek to include in the protection of and the acceptance of

the information provider.

This must be open to all citizens as a duty of care with the inherent obligations that we all

have to one another to maintain civil society. Without it we are all potential victims to the

brutish outcomes brought about by uncontrolled competition amongst too many individual

interests with the consequences of anarchic forces brought to bear for the many and the

undermining of that which we seek, civil society.

Whistleblowing must be clearly inclusive of not just the work force but of the ordinary

9(2)(a) privacy

2

citizen who is often the consumer of product, service, legal engagement and entitlement,

medical practice and participation as a patient, and notwithstanding the accountability of

those to whom we elect to be the voice and representatives in Houses of Parliament, the

fourth estate being media which rely on the relay of said events without taint of bias and

opportunism must not be exempt.

We too all have eyes, ears and observations that set in motion the contribution of whistle

blowing when harm to the self or another is obvious, imminent, perceived and felt. This

inclusion sets in motion participation and what can be referred to as the collective good.

Thirdly the enactment and jurisdiction of those who become that arbiter and safe keeper of

the said received information. These guardians or watchdogs as it were are a special breed

and not easily found amongst us. The required need to academically have good intentions

and the desire to do good for our nation are insufficient qualifications in the time and age in

which we live. The pacifist is not fit for purpose as they not only lack the will and intent to

take the affirmative action required but have an inherent resistance to assess the needs of

others due to naïveté and the required life experience that provides insight to the consequence

meted out against another or the state. This is an imperative part of the required reflection of

what it is that we do and for what purpose and why.

Fourthly consequences to those to whom we have identified as potential risk to the laws

regulations and virtues of our society set out for the functioning of good governance and

financial stability. These consequences must be consistent and reasoned yet carry the

required gravitas that is seen and felt by the perpetrator and the society that witness the

consequences of the said actions of wrongdoing.

Privacy must no longer be used to hide the ills and wrongs that are seated in the shadow

aspect of us all. It is a healthy society that can shed light and discussion and provide a nation

with the opportunity to grow, mature and come to conclusions that are beneficial to not only

3

the immediate self but the wider realm of our existence. That being the protection of our

environment and the planet in which we reside as the supposed custodians and inhabitants on

which we all rely for our ongoing survival.

So whistleblowing has many faceted aspects in that the task at present is worthy of careful

consideration.

We must not run from it or over react to the concept of where we go from here.

From a final and personal reflection on the consequences of whistleblowing or just plain

speaking out with the enacting of the supposed protections of legal remedy have proven in

one life time to have been a task that I can now reflect upon with the added consequences to

me that have compounded and been one of Sisyphean proportions.

These dilemmas have come from the simplest of expectations in our modern period of time

and space that being a car repair - in fact one on both sides of the Tasman. The consequences

in New Zealand have brought injustice that goes to the heart of our system. There was deceit,

greed, ineptitude and perjury in a court of law that was so easily manipulated, marginalized

and corrupted due to a high public profile individual that no one wanted to confront or deal

with, due solely it would seem to cronyism.

The consequence to my life has been life long, encapsulating threats and warnings, rejection

and ridicule and ultimately an attempt to question my sensibilities without the smallest of

expectations, that being, to be met, spoken with, understood and assured that a remedy was

available. Due process and a fair hearing are an essential part of our democracy. These

concepts are inherently acknowledged in what we all know are the unwritten rules in life.

They are free speech, freedom to have opinion, including political without fear of retribution,

the right to maintain a good reputation both personal and financial. As fate would have it

across the Tasman a car repair and subsequent car accident unleashed events that could not be

believed were it not for the reality of one’s nationhood, youth and gender being perceived as

4

easy pickings as it were and the ensuing medical neglect, legal obfuscation and the duplicity

of Insurance entitlement carried out with a harsh outcome upon one’s life. It was a case of

criminal and corrupt individuals playing their part in the ultimate outcome. These realities

and opportunity to expose said crimes in life are being eroded due to the psychological

outcome of resistance and denial.

These aspects of the self are our greatest foe because of the refusal of the opportunity to

speak without fear, share our insights and experiences that are in turn treated with respect,

reflection and acknowledgement to the parties involved with an appropriate and timely

remedy. All of these aspects have not only been denied and ignored but also neglected to the

detriment of us all.

Whistleblowing is a term used in our present time. It has its origins laid out from the past

battles in life when we relied on the state, the church and the legislature to enact the duties set

out to protect a nation and of those who inhabit it. Whistleblowing is an act that we must all

understand the purpose of with the ramifications and intent shared if we are to play our part

and we are to survive the ensuing calamities that are about to befall us in this present time if

we stand by and do nothing.

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