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Be careful how loudly we blow this whistle, says DLA Piper

In recent times there has been no shortage of commentary regarding whistleblowers, with the proposed amendments to the Protected Disclosures Act 2000. These are aimed at strengthening the protection available to whistleblowers in New Zealand. That is welcome, and timely; we need better focus on conduct and culture within our organisations. But we’ve been approached by many businesses, with many questions.

In June we presented a seminar on whistleblowing policies in conjunction with some of our Australian colleagues. New Australian legislation came into effect in July, and DLA Piper believes it may cause as many problems as it seeks to solve. Australia has introduced criteria for whistleblowing such as seeing “misconduct or an improper state of affairs”. People can make a protected disclosure anonymously, which is right and proper, but the people who can make such disclosures can include not only outside suppliers to an organisation but also family members of an employee. This has the potential to be unwieldy, with investigations which may turn out to be rumour and scuttlebutt, along with valid complaints.

The other question is what constitutes an improper state of affairs within an organisation. The Australian law does not cover regular workplace grievances of the sort dealt with by HR, unless they amount to serious misconduct but the door seems open to versions of those, elevated in importance by anonymous complainants. In practice that may be some distance away from our current criteria: e.g. unlawful, corrupt or irregular use of public money or resources; conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law; any criminal offence; gross negligence or mismanagement.

With bullying accusations, for example, although it is vital to have these dealt with, natural justice suggests they require a defence and a degree of openness, however difficult that may be to manage. So there need to be clear procedural channels that provide protection but also fairness. Bullying is not in general caught by the Australian legislation, but it could be argued that a bully may bully others, or is already doing so, to the detriment of an organisation. That could appear to be “an improper state of affairs”, to use the Australian criterion, especially as 21% of employees say they have seen “wrongdoing” in a New Zealand organisation. How such wrongdoing is dealt with can be managed, in our view, with these key, clear procedural channels. It is a more sensible solution than vaguely-worded law.

Our Chief Ombudsman agrees that reform is necessary; he suggests that bullying and harassment be included in a definition of serious wrong-doing, perhaps under a separate category. He makes the salient point that there are not these clear and safe pathways for employees to raise systemic issues of bullying and harassment in New Zealand.

In New Zealand we may get legislation setting minimum requirements for internal procedures for receiving and dealing with protected disclosures. We may see wider powers for the Ombudsman to request information from public sector organisations, with broader reporting obligations. The Victoria University School of Government wants the establishment of a new whistleblower protection authority to handle complaints ranging from bullying to fraud, in both the public and private sectors.

Whatever the end result is for New Zealand, it seems evident that a number of organisations here are relying on global whistleblowing policies that are difficult to implement or even to understand. The devil is always in the detail, and it’s the detail we need to develop carefully, rather than rely on the sorts of policy imprecision that can cause confusion rather than add clarity.

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