The obvious question

Stuff has a story about ACC lying in an OIA response, and how it was exposed by a whistleblower under the Protected Disclosures (Protection of Whistleblowers) Act 2022. Its the usual story: journalist hears about expensive party, sends in an OIA request, is pressured to agree to limit scope to parties which cost over a certain amount in an effort to prevent disclosure, then when it turned out that it did cost more than that due to travel costs, they decided they were really travelling for "other work" so they could pretend those costs didn't count. And everyone involved knew it was wrong:

Another staffer disagreed with the manager.

Their message said: “‘other work’ This is wrong. Fundamentally wrong.”

In the discussions, ACC staff had said they did not believe that all of those 11 staff would have flown to Wellington had the farewell function not been held.

The manager admitted it was dodgy. “Everybody knows that,” they said. They then said they would personally sign off the response.

That statement indicates a willingness to take responsibility for the illegal decision. Which raises the obvious question: have they? Have they faced an employment process over it? If not, why not? Because knowingly violating your legal obligations as a public servant is the very definition of "serious misconduct". And people should be fired for it.

Australia jails another whistleblower

In 2014 former Australian army lawyer David McBride leaked classified military documents about Australian war crimes to the ABC. Dubbed "The Afghan Files", the documents led to an explosive report on Australian war crimes, the disbanding of an entire SAS unit, and multiple ongoing prosecutions. The journalist who wrote the stories, Dan Oakes, was later awarded a Medal of the Order of Australia for "service to journalism" for the work.

Today, in revenge, the Australian government jailed McBride for almost six years - a longer sentence than any Australian war criminal has so far received for the offences he uncovered.

The message is clear: when the Australian government commits crimes, the witnesses should keep quiet. Otherwise they will be victimised and persecuted. Its hard to see this as anything other than official government support for war crimes and war criminals. Provided they're committed by Australians, of course.

(And, lest we feel too superior, John Key passed a similar anti-whistleblowing law here, allowing the punishment of those who blow the whistle on the defence - spy deep state, which is yet to be repealed).

Some light in Australia

Back in 2013, a former ASIS agent blew the whistle on how the Australian government had illegally bugged the leaders of East Timor in order to listen in on their negotiating position over oil and gas rights in the Timor Sea. When the issue was raised in the International Court of Justice, the Australian government raided the homes of both the whsitleblower and East Timor's Australian lawyer, then charged them with revealing classified information. But today, at least part of that persecution has been ended, with the Australian government dropping against lawyer Bernard Collaery:

Attorney-General Mark Dreyfus has ordered the Commonwealth to drop the prosecution of lawyer Bernard Collaery, four years after he was charged with conspiring to release classified information about an alleged spying operation in East Timor

Mr Collaery was charged in 2018 for allegedly helping his client, an ex-spy known only as Witness K, to reveal details of the classified ASIS mission.

This is good, but its not enough - Collaery was persecuted for five years, essentially for representing a whistleblower. His client, "Witness K", was forced to plead guilty and convicted. They should be pardoned, and both should be compensated. The people who orchestrated that persecution need to be fired. But most importantly, Australia's "national security" laws need to be repealed to protect the public interest in leaking, so this can never happen again.

Nothing to celebrate

The Protected Disclosures (Protection of Whistleblowers) Bill passed its third reading this afternoon. The government and the Ombudsman are both celebrating this "significant improvement" in whistleblower protection, but as I pointed out when the bill was introduced, it is nothing of the sort. The law still sets the bar for protection unconscionably high, restricts who whistleblowers may disclose to to receive protection, and allows organisations to simply do nothing in response to a disclosure. There is no right to go to politicians or the media if that happens, and retaliation remains an expensive to enforce civil liability, rather than a criminal offence. All of this is done differently and better overseas, and Aotearoa could have adopted those models if we wanted a proper, functioning law. Instead, we got a status quo "reform" seemingly aimed at discouraging and limiting whistleblowing rather than encouraging and protecting it, written by people who see whistleblowers as a problem rather than a solution.

So there's nothing to celebrate here. Instead, its a massive missed opportunity, which will do nothing to improve accountability.

Submit!

The Education and Workforce Committee has called for submissions on the Protected Disclosures (Protection of Whistleblowers) Bill. The bill is a rewrite of our currnet whistleblower laws, with minor tweaks - basicly status quo "reform". It needs significant improvement to be worth Parliament's time.

The deadline for submissions has not been determined yet, and it may be after the election. Submissions can be made online here.

Status quo "reform"

Last year, the government promised that it would strengthen whistleblower protections. Today, they finally released the bill. There's one major change: "[a] discloser is entitled to protection for a protected disclosure made to an appropriate authority at any time" - an "appropriate authority" being public sector heads, officers of Parliament, or various oversight bodies as listed in the schedule to the bill. But note who it specifically excludes: Ministers and MPs. Whistleblowers will only be able to go to the Minister where their organisation has failed to investigate. And if they just drag their feet or stage an internal coverup, you're on very shaky ground trying to do the right thing.

And other than that, its basicly a re-enactment of existing law, with updated language. There's no criminalisation of retaliation against whistleblowers - that remains a strictly civil affair, to be dealt with by the victim at their own expense. And there's no protection of disclosures to the media to ensure a full and proper investigation (permitted in some Australian states). Instead, disclosures to media are explicitly labelled as "bad faith". The law will do nothing to protect whistleblowers in the sort of case which supposedly inspired it.

If this is "reform", its the "reform" from people who think that everything is working as it should, that nothing much needs to change, and that whistleblowers are the problem rather than a solution. As for Chris Hipkins' goal of ensuring that employees feel safe to report cases of serious misconduct - explicitly seen as a failure of the current law - it will change nothing.

Spies, whistleblowers, and oversight

This morning the Inspector-General of Intelligence and Security (IGIS) pointed people at an article on "Playing Hide and Speak: Analyzing the Protected Disclosures Framework of the New Zealand Intelligence Community" by Caitlin Macdonald, Rhys Ball & William James Hoverd. The authors were trying to look at how the whistleblowing framework (set by the Protected Disclosures Act) works for spy agencies, backed by an OIA request for policies and interviews with the two spy agency directors and the IGIS. Its an interesting read, but there's several disturbing points. First, the spy agencies' internal protected disclosure policies mislead employees about their rights, placing an emphasis on internal disclosure to management and downplaying the ability to take issues directly to the Inspector-General. Which is problematic, because the Inspector-General is quoted as saying that internal disclosers can face retaliation:

if you go internally then they think you’re about to leak externally and they do certain things.

It is unclear whether this has actually happened, or whether the IGIS is simply reporting on an institutional mindset, but it doesn't encourage disclosure or reporting of problems (which is perhaps the point). Related to this is that there is no institutional reporting to the Inspector-General of such internal disclosures, and so no monitoring of whether they are properly investigated or whether staff suffer retaliation. Which seems like an excellent subject for an own-motion IGIS inquiry...

But most disturbing is the GCSB Director's claim that "IGIS’s recently established reference group of uncleared and harsh critics of the intelligence community may harm the legitimacy of the IGIS among agency staff". If there is such a perception, then it is something that could be countered by strong leadership from the Director about the role of the reference group, and the importance of oversight and how it builds public legitimacy for the agency. The fact that he is instead spewing this suggests that this is, if not his view, then at the very least tacitly supported by him, and that he is attempting to actively or tacitly delegitimise his primary oversight agency and encourage staff to view it as the enemy. And that is simply not an acceptable approach from a public servant responsible for an agency with hugely intrusive powers.

Strengthening whistleblower protection

The government has announced it will strengthen whistleblower protections. The major change is "allowing people to report serious wrongdoing direct to an external authority if they wish", which fixes one of the big flaws in the Act. At present, whistleblowers must generally make their disclosure direct to the body they are blowing the whistle on - a requirement which disincentives disclosures (because of obvious and justified mistrust) while enabling institutional coverups. If "external authority" means MPs and the media, then that removes that barrier, while setting a strong incentive for organisations to have effective and trustworthy internal processes (because otherwise people will just go to the media instead).

Unfortunately, the rest of the changes are mostly technical. On the other big problem with the Act - the lack of real protection for retaliation - the government proposes "strengthening" protections by making requirements clear. Which simply isn't enough, because it still relies on private enforcement for a breach, and will only impose civil penalties (which will usually be borne by someone else). Australia meanwhile has made retaliation against whistleblowers a criminal offence, which means there is a real incentive not to do it. And as for the decriminalisation of intelligence whistleblowing - shamefully made a criminal offence by National, despite clear evidence of its public value and of unlawful behaviour by spy agencies - that doesn't even get a look in. So, while these are welcome changes, they simply don't go far enough.

(Meanwhile, I guess this will be proudly announced as an Open Government Partnership commitment in our next action plan, despite being a business-as-usual policy which has been in the works for years. It is neither ambitious nor additional. But that's the typical scale of New Zealand's OGP "commitments")

Australia persecutes a whistleblower

Back in 2013, a former ASIS agent blew the whistle on how the Australian government had illegally bugged the leaders of East Timor in order to listen in on their negotiating position over oil and gas rights in the Timor Sea. When the issue was raised in the International Court of Justice, the Australian government raided the homes of both the whsitleblower and East Timor's Australian lawyer. And now, they're prosecuting both of them for revealing information about ASIO:

A Canberra lawyer whose client exposed a secret Australian spying operation in East Timor has described the prosecution against them both as an attack on freedom of speech.

On Thursday, using parliamentary privilege, independent MP Andrew Wilkie revealed the Commonwealth Director of Public Prosecutions recently filed criminal charges against Bernard Collaery and his client, a former spy known only as "Witness K".

Witness K had raised concerns about a covert Australian Secret Intelligence Service (ASIS) operation he ran to bug East Timor's cabinet in 2004 during negotiations about an oil and gas treaty.

Mr Collaery, who once served as ACT attorney-general, described the move as a personal attack on him and his client, who cannot be named, and said it was a sad day for Australia.

So, they prosecuting a whistleblower for blowing the whistle on illegal and immoral behaviour, and a lawyer for representing their client, under a clause of the law which makes it illegal to reveal any information about government spying. It is simply persecution. And it highlights the danger of our own similar law, which has no public interest defence or protection for those who reveal illegal, but classified, activities here.

It gets worse. Because Australia has just passed an "espionage" law which would criminalise protests and which considers embarrassing the government or diminishing its international standing (e.g. by exposing poor policies) to be damage to "national security". Our nearest neighbour is turning into a nasty little authoritarian hellhole. I guess we've just got to hope that Australians wake up and stop it, before it is too late.

...and on whistleblower protection

Abortion isn't the only area where Labour is moving to act on its promises. last year, the newly elected government suggested it would strengthen whistleblower protections. Now, they're doing that too:

Work has begun on a review of the Protected Disclosures Act 2000, Minister of State Services Chris Hipkins said today.

The Government is exploring whether the law and procedures to protect whistle blowers need to be strengthened. The review will start with a series of targeted workshops next week.

“Getting this right is critical to building public confidence in the integrity of government and business in New Zealand,” Mr Hipkins says.

“It is crucial that employees feel safe to report cases of serious misconduct. Anyone who raises issues of serious misconduct or wrongdoing needs to have faith that their role, reputation, and career development will not be jeopardised when speaking up.

“The first step in this review is to identify possible gaps and weaknesses in the current Act.”

There are a couple. Firstly, that whistleblowers can't go to MPs or the media if their reports are ignored by their proper reporting chain. Secondly, that (thanks to National) it is literally a criminal offence for staff in some departments (notably those with significant intrusive powers) to pass on evidence of wrongdoing. Thirdly, that it is not currently a criminal offence to retaliate against whistleblowers. All those things need to change. Hopefully this review will be the first step in that process.

Time to strengthen whistleblower protections

The government is reportedly considering stronger protections for whistleblowers:

Whistleblowers who dob-in bad behaviour by their employers to the media could get legal protection.

State Services Minister Chris Hipkins said the Government planned to review New Zealand's Protected Disclosures Act saying there was "a strong view" the 17 year-old law needed updating to keep pace with international best practice.

"Over the coming months I will be working with my officials on available policy options. I will consider the next steps when this work is more advanced," he said.

Good. Because the current law clearly isn't working, and is ignored by the very institutions responsible for upholding it. As for how to fix it, there are two obvious measures. One is to allow whistleblowers to go to the media or MP's if their concerns have been ignored by their proper reporting chain. That's an important incentive for those who receive whistleblower reports to actually act on them: because otherwise it will blow up messily in their faces. Related to this, we need to decriminalise government whistleblowing. National made it a criminal offence for people who have ever held a government security clearance to report classified government wrongdoing to the New Zealand public. The obvious result is that such wrongdoing will not be reported, even when it involves corruption, deception, or the violation of human rights. Obviously, that needs to change.

Secondly, while the law prohibits retalation against whistleblowers, it requires the victim to take an employment case against their abuser. And where the organisation they blew the whistle on has deep pockets, that's pointless. Instead, retaliation needs to be a criminal offence. Again, Australia does this, and it seems to provide the right incentives against retaliation for agencies and their staff.

All of this was suggested as part of the Open Government Partnership action plan consultation last year. National didn't pay any attention to it. I'm glad that the new government did.

No protection for whistleblowers in NZ

There's been some debate about the need for increased whistleblower protection in New Zealand. And today, we have a perfect example of why it is needed: because the Western Institute of Technology at Taranaki has just got the Employment Relations Authority to punish someone for blowing the whistle on them:

A whistleblower has been ordered to pay $6000 for writing disparaging letters to politicians David Cunliffe and Steven Joyce about the Taranaki polytech where she used to work.

Western Institute of Technology at Taranaki (Witt) hired three handwriting analysts to ascertain whether the letters were written by Angela Parr, former personal assistant to Witt chief executive Barbara George. All three concluded that in all likelihood they were.

Employment Relations Authority concluded that Parr's actions were "flagrant, deliberate and at the upper end of wrongdoing".

"Furthermore by her defence Mrs Parr has shown no remorse. There is a strong case for condemnation and a need for deterrence."

The problem of course is that Parr's letters appear to be "protected disclosures" in terms of the Protected Disclosures Act. They were certainly presented as that when raised in Parliament:

Hon David Cunliffe: What action is the Minister taking to protect whistle-blowers to the Tertiary Education Commission, following allegations conveyed to him in a letter dated 14 February 2016 that the Western Institute of Technology is using taxpayers’ funds to pursue a legal vendetta against both former and current staff members who have properly raised substantiated probity issues to the Tertiary Education Commission?

From this, it appears that the allegations were raised up the chain, and ultimately to the Minister, as permitted by s10 of the Act. Unless they were shown to be in bad faith, the protections of the Act against civil proceedings should have been engaged. The Minister should also have treated the disclosure confidentially. Instead, he appears to have initiated a witch-hunt. As for the Employment Relations Authority, they appear not to have even considered the protections of the Act in their decision, not even to dismiss them. Which means they have helped WITT and the Minister piss all over the act and victimise a whistleblower.

And then we wonder why people don't come forward with allegations of wrongdoing in New Zealand. This is why: because the law does not protect them, even when it should.

Unprotected disclosures

The State Services Commission has released the results of its inquiry into retaliation by convicted fraudster Joanne Harrison against staff who tried to blow the whistle on her. They're pretty devastating:

Four whistleblowers at the Ministry of Transport suffered "humiliating" reprisals after they raised concerns about convicted fraudster Joanne Harrison, a high-level inquiry has concluded.

And while the staff members were not forced out of their jobs as initially claimed, Harrison's advice meant some of them were made redundant just before Christmas or had requests for a pay rise rejected.

The affected staff members are now in line for compensation, the State Services Commissioner Peter Hughes said at a press conference this afternoon. The size of the payout was confidential.

Each of these staff did the right thing, and were punished for it. Its a clear breach of the Protected Disclosures Act, and SSC has recognised that with compensation. At the same time, it has once again raised the wider issue of whether the Protected Disclosures Act is fit for purpose. There's some vague recommendations for a review, but nothing concrete, despite the clear failure of the Act in this case. Reform was suggested in last year's Open Government Partnership consultation, but was not taken up by the government. This case suggests very strongly that that was a mistake. We need an improved whistleblower law, one which empowers employees to go to MP's and the media if their bosses ignore them, and one which offers concrete protection against retaliation, with personal liability and jail terms for bosses who try to silence them. Anything less, and we are implicitly tolerating corruption in our public service and our society.