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Protecting whistle blowers: a new legislative chapter

By Jane Arnott, MNZM, director of The Ethics Conversation.

The new Protected Disclosures (Protection of Whistle-blowers) Act is imminent. Whistle-blowers can take heart that new protections and disclosures around the whistleblowing process are designed with their well-being in mind.

Employers, however, will be on notice to offer a level of support, insight and protection among other measures previously unseen.

An effective speak up culture works as an economic driver and a performance enhancer.

This is because, when employees and other stakeholders are confident that their concerns and observations will be taken seriously, a greater willingness to bring troubling matters and issues into the open will result.

The ideal is for any organisation to encourage a culture whereby early intervention, one that allows for investigation and resolution before escalation is necessary, to be the norm.

But, as with all ideals this is too aspirational. And so speaking up and speaking early is rare.

Employees are better at waiting until a serious threshold is reached. And, even then, the ability to slip into ethical blindness where they just do not want to get involved in speaking up or moral disengagement where they may already be involved but refuse to act, allows both time and damage to accrue.

Without a well understood, clearly visible and trusted avenue for reporting bad stuff goes unchecked. It festers and can even become ‘the way we do things around here’.

It is within this environment that the 2018 review of the Protected Disclosures Act 2000 was started.

And it remains unfortunate that with so much to be gained through the actions of whistle-blowers the documented level of retaliation has made it a thankless and often unwise task.

Following a targeted consultation led by the State Services Commission with groups and individuals who had a vested interest or personal experience in the Protected Disclosures Act the second stage public consultation was launched over 2019. Reading through the 76 submissions made during this consultation phase was disturbing. For several their lives and careers had been blighted despite the significance of their information and subsequent successful Government-led prosecutions.

But such shocking outcomes may well be about to change.

The second reading of the Protected Disclosures (Protection of Whistle-blowers) Bill is due and when it lands it will do so with impact.

There are a raft of new obligations that the public sector will have to understand and implement.

They include the following.

Improving the ability for reporters to go directly to an external authority and imposing definitive obligations on receivers of reports and strengthening protection for reporters including specific advice around what the receiver of a disclosure should do.

Clarifying internal procedure requirements for public sector organisations to the extent of describing what is required of those receiving a disclosure and explaining how practical assistance and advice for disclosers will be provided.

Clarifying the potential forms of retaliation or less favourable treatment disclosers might face a whistle-blower may face. Critically, The Bill makes it clear that things other than dismissal can be a basis for a personal grievance.

Extending the definition of serious wrong doing and including reference to gross mismanagement

Improving the accessibility for the processes and protections for protected disclosures

Local Government, indeed the entire public sector will soon be tasked with stepping up and re-evaluating the processes they already have in place. But beyond process will be the potential need to change the mindset of many managers to ensure they better align with the need to develop greater confidence and uptake.

Integral to developing a speak up culture is ensuring all receivers of information have insight into their own behaviour – how do they refer to whistle-blowers in casual conversation and how do they help in minimising the tension between reporting a colleague’s bad behaviour and acting in the long term interests of all stakeholders.

Everyone holds some sorts of bias and familiarity Bias. Believing that our colleagues ‘would never do such a thing,’ when coupled with rigid defensiveness can rapidly derail a speak up process.

A high profile New Zealand law firm will not be alone in recognising, after the whistle-blower had unleashed widespread dismay and discord in the public domain, that their initial stance of defensiveness and disbelief didn’t help anyone.

Equally, trusting too much and listening too little has undone many a public servant and made whistleblowing an impossible task for many.

As ever, establishing a strong endorsement and tone from the top around the valuable role the speak up plays, in preventing the fallout from wrongdoing or bad behaviour, will become more important. There are many strategies to achieve this but all start with the commitment to encourage and value a speak up culture over one where silence has taken hold.

New Zealand based Ethics at Work research undertaken by the Institute of Business Ethics, that included public sector employees, found that 34 percent of respondents who had witnessed misconduct at work decided not to speak up.

The main reasons were: Not believing that corrective action would be taken 35 percent; fear of jeopardising their job 33 percent; fear of alienation from colleagues 27 percent. These insights reinforce the extent to which the local government sector must now reflect on their individual leadership, management and culture.

While one whistle-blower has described the proposed changes as empowering others remain sceptical. On record is the fact that the Serious Fraud Office, the Chief Ombudsman and the Ministry of Justice consider that the changes do not go far enough. There is therefore every reason to believe that the 2021 Protected Disclosures ( Protection of Whistleblowers) Bill will gain some further heavy weight attention in the not too distant future.

But efforts to recalibrate as the changes appear will not go unrewarded. Disclosers will benefit as they will now be better informed and can expect fairer treatment. They will know in advance the expectations of them and of those to whom they turn. To whom, when and how they can report serious wrongdoing will be clear.

In turn, public and private sector organisations can hope to see an increase in protected disclosures; the overarching objective being to weed out the rot – building trust and lifting performance, improving morale in the process – the true value of which is inestimable.

We owe a debt of gratitude to those whistle-blowers who have gone before.

And it is gratitude and true protection that must now preface this new and exciting chapter in our whistleblowing history. LG

 

Jane Arnott, MNZM, was the first offshore Associate and Country Representative for the UK-based Institute of Business Ethics (IBE), a position she held for over ten years. Her appointment followed the completion of her post graduate study in Professional Ethics and further study undertaken in London. She is the co-author of the IBE publication ‘Setting the Tone: A New Zealand Perspective on Ethical Business Leadership’. She was appointed a Member of the New Zealand Order of Merit in the 2021 Queens Birthday Honours.

 

 

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