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.”
I am contacted two or three times a year by members of the public (always public servants, and generally mid-level) who have suspicions about the bone-fides, qualifications or claimed work experience of people they work with, or under. I discuss the options available to them, in particular the Protected Disclosures Act, but I am not aware of any of them invoking it.
I think in part this might be due to their not being 100% certain they are working with a fraud. They might be 80% sure but without complete certainty they are reluctant to take that next step, and become a “whistle-blower” on a suspicion, notwithstanding that it is an honestly held belief, often built up over several months.
It is interesting that none of the callers to me have been private sector employees and I was not surprised by the Chief Ombudsmen’s comment yesterday that she “wonders why nobody blew the whistle from inside any failed finance companies”.
Despite the legal protection the Act affords whistle-blowers, I am not certain it actually works as intended. Anyone contemplating becoming a whistle-blower ought to read the front-page “Listener” article of 12 May 2012 and what Hayley Bryan went through to unmask her boss’s multimillion dollar fraud:
The most effective whistle-blowing schemes might be those that are entirely anonymous, and I am thinking here of the free-phone lines that IRD and MSD offer to allow the reporting of tax and welfare fraud. It would be interesting to know what percentage of the calls received are found to be genuine, rather than baseless or maliciously motivated.
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