Submission on the Protected Disclosures Bill

28 January 2021

Marja Lubeck MP
Chairperson
Education and Workforce Committee
Parliament Buildings
WELLINGTON

Dear Ms Lubeck

SUBMISSION ON THE PROTECTED DISCLOSURES (PROTECTION OF WHISTLEBLOWERS) BILL

We thank the Education and Workforce Committee for the opportunity to comment on the Protected Disclosures (Protection of Whistleblowers) Bill (the Bill).

The Controller and Auditor-General has a role in supporting a high-performing and accountable public sector, which in turn helps Parliament and New Zealanders to have trust and confidence in the public sector. The aims of the Bill align with our focus on supporting the strengthening the integrity of the public sector. Building strong integrity cultures across the public sector is the most significant action our leaders at all levels can take to address corruption.

We support the intent of the Bill to strengthen whistleblowing processes for encouraging and protecting staff who speak up about wrongdoing. Whistleblowing processes are a crucial element to achieving integrity, good governance, and preventing and combating corruption. We note the specific changes proposed through the Bill as they will help to strengthen the integrity of the public sector. We note in particular the importance of the changes clarifying the definition of “serious wrongdoing” and enabling people to report serious wrongdoing directly to an appropriate authority at any time, along with the strengthening of protections for disclosers, clarification of the internal procedure requirements for public sector organisations, and the potential forms of adverse conduct disclosers may face.

Request for the Bill to recognise the Auditor-General’s position as an independent Officer of Parliament, who is also an appropriate authority

The Bill currently contains the ability for the Ombudsman to consider our Office’s treatment of a protected disclosure and refer it to a Minister. Our view is that it is not appropriate for that to occur in light of our independence. We ask that the Bill clearly recognise our position as an independent office of Parliament that is an appropriate authority.

Clause 30 sets out the provisions for escalation, either through referral to a Minister or for investigation by the Ombudsman, of a protected disclosure where the Ombudsman considers the receiver of the disclosure has neither acted as they should nor dealt with the matter to address the serious wrongdoing.

Clause 30(2) does not authorise the Ombudsman to act if the disclosure relates to the Parliamentary Commissioner for the Environment. However, this same exclusion is not provided for the Office of the Auditor-General. We request that a similar exclusion is provided to our Office. I have raised this issue with the Office of the Ombudsman and the Parliamentary Commissioner for the Environment, as fellow Officers of Parliament, and both share my view on this matter.

We suggest clause 30(2) be amended to include the text in italics:

(2) Subsection (1) does not authorise an Ombudsman to act under that subsection if the disclosure relates to or the receiver was an Officer of Parliament.

Specify the Speaker as the appropriate authority for Officers of Parliament

The Ombudsman’s submission also proposes a new subclause 23(2)(c), which specifies that the Speaker is the appropriate authority for Officers of Parliament. We support this proposed amendment.

Distinction between types of disclosures (Internal or as an appropriate authority)

The proposed amendment above addresses the question which applies to our Office. However, in preparing our submission, it has occurred to us that there might be other situations in the Bill where it could more clearly set out how the rules and processes apply to appropriate authorities that receive disclosures about other organisations (as opposed to public organisations that are considering a protected disclosure about their own actions). We have not suggested drafting options but invite the Committee to consider this point.

Concluding comments

We welcome the public consultation on the Protected Disclosures (Protection of Whistleblowers) Bill and thank you for the opportunity to submit. We do not wish to appear before the Committee to speak to this submission.

As we do with other submissions on Government proposals, we will publish this submission on our website.

Yours sincerely

John Ryan
Controller and Auditor-General