In the light of the Pike River tragedy, the chief ombudsman is calling for a review of how workers can lift the lid on corrupt or dangerous practices. By Rob Stock .
New Zealand's underused whistleblower protection act is not working and needs to be reviewed says Chief Ombudsman Dame Beverley Wakem.
There is soul-searching in the Office of the Ombudsman as to why no-one connected to Pike River blew the whistle on the poor safety standards at the mine where 29 people died when methane ignited there in November 2010.
Wakem has not been able to come up with an answer.
"I don't actually know, to be perfectly honest," she says.
But she believes it is time to find out.
The office is the place where whistleblowers should go to lift the lid on wrongdoing and serious threats to safety. The trouble is, it just isn't happening.
Wakem says it is time for a review of the Protected Disclosure Act, the law protecting "employees" of companies and agencies.
"Pike River and the royal commission's findings - and the many opportunities there were for people to blow the whistle - has really made us think about whether the act needs to be revisited," she said.
Lives might have been saved if the whistle was blown, Wakem said.
She says the Office of the Ombudsman would have recognised the seriousness of the situation if a miner or contractor had called the office and asked for protection and anonymity under the act.
The office could have moved with urgency, and had the power and discretion to act beyond going to the mining regulator, which was roundly criticised by the royal commission for being incompetent and massively understaffed.
Wakem would like to see a review happen next year, giving the country the chance for a proper public consultation to shed light on why the act is barely being used.
In the period from July 1, 2011, to June 30, 2012, it was invoked nine times. The previous year it was just seven. The year before that six.
In almost every instance, the things people want to whistleblow about fall short of the criminality and serious risk to human safety that is the test under the act.
From one perspective, that could indicate there was little corruption and mismanagement in New Zealand to blow the whistle on, said Wakem.
But she doesn't give the impression of someone who believes that.
Wakem is frustrated that in a country where there is no mafia, and nobody would come around to kneecap or murder a person for whistleblowing, the "weapon" of protected disclosures is not used more.
And it's not just Pike River that has shaken that view.
Wakem wonders why nobody blew the whistle from inside any failed finance companies either.
Wakem says the issue is New Zealand's alone but there may be some factors that make whistleblowing particularly nerve-racking here, including the smallness of the country and fear that whistleblowers could be easily identified.
In one case a whistleblower chose to out themselves when the finger of suspicion was pointed at colleagues. That person was "restructured" out of a job, Wakem said, although no wrongdoing on the part of the employer was found.
An under-funded and understaffed Office of Ombudsman (it is about four investigators short-staffed) is lifting its profile by revamping its website, issuing a guide to whistleblowing, creating a Facebook page, and is about to embark on Twitter.
A survey this year showed 69 per cent of people had heard of the Office of the Ombudsman, but Wakem said it was clear many didn't know what it was there for.
Complaints to the office have increased, in a large part due to frustrated people trying to get government and its ministries to release information under the Official Information Act, something that appears to feed into a worrying picture of New Zealand slowly losing its tradition of openness, which Wakem criticised earlier this year.
Wakem is particularly scathing about the passing of the Mixed Ownership Act that meant state-owned enterprises for sale are exempt from the Official Information Act, based on the argument that the market would provide scrutiny.
But the the intention to do the same for charter schools is beyond the pale for Wakem, who cannot believe that the Government wants to direct state funds into privately operated schools while exempting them from the Official Information Act and the Ombudsman Act, both of which cover state schools.
For the charter schools it will mean being able to keep their annual reports from the public, hiding the profits they make for their private owners.
Wakem said New Zealand has a long tradition of transparency and openness, and she fears that the media is not doing enough to highlight the threat.
"Where is the media on this?" Waken asks.
"What will be next? Is it death by a thousand cuts?"
Another example is the removal of the requirement for many overseas-owned companies to post financial statements on the Companies Office making it much harder to track their activities.
- © Fairfax NZ News
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