Newsroom’s investigation of Oranga Tamariki has highlighted the critical role whistleblowers play in bringing wrongdoing to the public’s attention. Jem Traylen looks at whether the Government is doing enough to protect them.
Two days after Newsroom broke the story of a teenager in state care being assaulted by members of staff, the minister responsible for Oranga Tamariki questioned why it took a whistleblower to expose it.
Fronting at a select committee, Kelvin Davis first thanked the whistleblower and then lamented the fact internal complaints processes hadn't highlighted it.
“We’ve been asking what is wrong with the processes that these sorts of events didn’t come to the fore?
“I expect that any organisation has the processes where people, if they have complaints to be made, that those are processed and heard.
“Why should it take a whistleblower?,'' he asked.
One answer to Davis’ question could be the lack of protection for those who do raise their concerns through official channels.
Victoria University of Wellington professor Michael Macaulay is a leading researcher on whistleblowing.
He told Newsroom there are two reasons why people who blow the whistle go to the media instead of making internal complaints – they either don’t know about the complaints process and the legal framework around it or they don’t trust it.
“Overwhelmingly, the biggest reason is that they don’t trust the system.
“They don’t trust something’s going to happen, they don’t trust the treatment they’re going to receive, they don’t trust they’re not going to get retaliation, so they turn to other mechanisms such as the media.”
The legal framework for these processes is found in the Protected Disclosures Act which is now more than two decades old.
The Minister for the Public Service, Chris Hipkins, currently has a Bill before Parliament that seeks to overhaul the regime, but Macaulay doesn’t believe it goes far enough.
He said it has been demonstrated time and time again that organisations needed to provide tangible support to whistleblowers.
“We do need those kinds of organisational processes to make sure you’re creating an arena of psychological safety so people will come forward.”
This included making a risk assessment so that they could make an informed decision about whether or how they want to proceed, he said.
“We’ve categorically shown in our research that when there’s explicit risk assessment at the earliest possible opportunity, it leads to better outcomes, better treatments for individuals and it usually leads to better outcomes for the organisations as well.”
The Greens agree with Macaulay and are pressing for these practices to be made mandatory.
The Party's public service spokesperson, Jan Logie, told Newsroom the Bill “missed the opportunity of requiring our public service and larger agencies to put that best practice into place".
“We heard from a number of people who had blown the whistle in terms of their organisations and had suffered really significant repercussions as a result of that - and some people who many years later were still going through the processes to try and reclaim their reputation as well as get reparation for the harm done to them.”
“There’s a kind of cognitive dissonance going on that many politicians will talk about the noble, important role of the whistleblower through history but nearly always their government is hunting down and trying to prosecute them.” - Nicky Hager
The Greens are still hopeful the Bill will be amended to mandate the kinds of practices Macaulay has in mind.
Hipkins’ office did not respond to a request for comment on such an amendment, but the Public Service Commission advised against it when the Bill was considered at select committee.
The advice said it would not be “practicable” to mandate these practices in the legislation, given the range of organisations that existed even in the public sector.
The Commission also pointed to the model standards it had issued, which set out minimum expectations for public sector organisations to support staff who were speaking up
Investigative journalist Nicky Hager spoke with Newsroom about his experiences with whistleblowers.
“I’ve had very large numbers of whistleblowers of different types during my career and there has never been an occasion where I’ve proposed to them that they become a formal whistleblower, because the protections simply aren’t enough and they would be punished for the rest of their lives in different ways.
“There’s a kind of cognitive dissonance going on that many politicians will talk about the noble, important role of the whistleblower through history but nearly always their government is hunting down and trying to prosecute them.”
When whistleblowers go to the media their identities are supposed to be protected at the media end through what is known as “journalistic privilege”.
However, there are limits to this protection, as Hager discovered when police raided his house in an attempt to uncover the notorious whistleblower, Rawshark.
Media law specialist Steven Price, who acted for Hager in the court case that followed, told Newsroom more needed to be done to protect journalistic privilege.
“It’s not that journalists are special, it’s that the flow of information through journalists from confidential sources, that pipeline, that’s what’s important and that could be shut down if journalists were unable to protect their [sources'] identities.”
Under current law, judges weigh certain factors to determine whether a journalist should be ordered by a court to identify their source.
“I wish that the actual provision would put a thumb on the scale of protecting journalists’ sources which it doesn’t quite do.
“It says 'Here’s a bunch of factors. Think about these factors, judge, and at the end of the day if you think we’re better off ordering the journalist to turn over the source you can do that'.
“I’m exaggerating a little bit because the cases are pretty alive to the importance of expression and confidential sources but the legislation, I think, could just present a stronger indication.”
Hager’s court case has inspired a Member’s Bill, proposed by senior Labour MP Louisa Wall, who said it was about holding people in power to account.
“The kaupapa of the Bill highlights that an effective media also depends on a legal basis that freedom of expression gives the right to function and report freely, sometimes critically, without threat or fear of punishment,'' Wall said.
