27 November 2012

Ombudsmen have a role under the Protected Disclosures Act to provide advice on how to report serious wrongdoing in a way which ensures the complainant gets the benefits provided by the Act.  However yesterday the Chief Ombudsman expressed concern that the legislation is largely unused.  She suggested a disclosure about the nature of operations at Pike River may have prevented the disaster that flowed from poor practices, subsequently identified in the Royal Commission findings.

The Ombudsmen’s Office receives fewer than a dozen enquiries each year about how to “blow the whistle” when people see things going badly wrong in their organisation. Many of those enquiries are about the workings of the legislation, and do not relate to any specific wrongdoing.

New guidance about the Protected Disclosures Act recently published by the Ombudsmen is obviously not in response to a demand for information, but will help increase awareness of the legislation.  An amendment to the Act in 2009 which enhanced the Ombudsmen’s role to advise on, and to investigate, serious wrongdoing received all party support in Parliament.  

It seems however that there is either little that whistle blowers want to complain about, or given the limited protection afforded by the Act, few are willing to test its benefits.

The State Services Integrity Survey in 2010 ( as in 2007 ) measured the extent to which State servants were familiar with the Protected Disclosures Act. The assessment was that only 35% were aware of the Act. The State Services Commissioner’s subsequent recommendation was that agencies should publish and promote to staff the agency’s protected disclosures policy, and re-publish it at regular intervals.

Agencies seem to have heeded neither the State Services Commissioner, nor that statutory duty  “to publish their policy and to republish it at regular intervals”.

That seems to be maladministration falling within the jurisdiction of the Ombudsmen. Perhaps public sector agencies should be required to report on how they comply with section 11(3) of the Protected Disclosures Act – “Information about the existence of the internal procedures, and adequate information on how to use the procedures, must be published widely in the organisation and must be republished at regular intervals.”