Wednesday, April 12, 2006

Editorial: Piercing the sound of silence

It would be unfortunate if the questions raised by an alleged Housing New Zealand gagging deal go no further than that agency's practices. Once the dust settles on this episode, thought needs to be given to the whole issue of whistleblowing. In particular, there should be an examination of how well legislation passed in 2000 is serving those who divulge serious wrongdoing in the public interest. Whether, indeed, the Housing NZ case confirms it is seriously flawed.

The Protected Disclosures Act promises protection for whistleblowers from victimisation and immunity from criminal or civil prosecution, but only if they act within a prescribed channel. Employees with serious concerns about activities in their organisations must seek, first, to have them dealt with internally.

What may happen, however, is that the very people accused of wrongdoing are involved in dealing with the would-be whistleblower's complaint. Their main concern may well be to keep the lid on matters by some means or other, rather than face serious embarrassment. In effect, the whistleblower becomes a catalyst for suppression. This the act seeks to address by directing thwarted complainants to an "appropriate authority", or, as a final recourse, to a Cabinet minister.

In large measure, the Housing NZ whistleblower followed this course in expressing his concern about alleged accounting irregularities. The upshot, he claims, was the offer from a senior executive of a $3000 final pay on condition that he did not approach any MP, minister or journalist about his worries, which Housing NZ said it would investigate. Further, the Minister of Housing's office has confirmed that the whistleblower telephoned it, but the minister was not told of the call.

The alleged hush agreement is to be the subject of an Auditor-General's report. If it confirms there was a gagging deal, the implications are clear. It is ethically and legally beyond the pale to bar any citizen from raising concerns with an MP or minister. The orchestrators of the deal, and the manager who approved it, could have no future at Housing NZ. If, as claimed, that includes the chief executive, Helen Fulcher, so be it.

In addition, what should not be overlooked is the way that the Protected Disclosures Act encourages such dealings. It directs whistleblowers along a channel populated by individuals with their own agendas and sensitivities. As such, it is hardly enhancing the chances of their concerns being heard, or acted upon. Indeed, whatever the eventual findings in the Housing New Zealand case, it is reasonable to ask if hush money has been paid, or similar dealings transacted, since the act was introduced.

Even if such is not the case, Parliament must act to forestall the possibility, and to ensure that whistleblowers are not thwarted by those eager to suppress their complaints. The best way to achieve this is by amending the legislation to protect them if they disclose information publicly.

The Housing NZ complainant did not require such protection because he left the agency last August. But others will. The danger, of course, is that this protection could be used maliciously by those with an axe to grind. Stringent penalties, in addition to the defamation laws, could curb that instinct. In any event, the benefits of the added freedom would far outweigh the potential danger. And, in the end, it would be up to the public to judge the significance of the revelations.

Above all else, whistleblowers must be free to voice their concerns. Their best intentions must not be waylaid by obstacles created by flawed legislation. They are too important for that.

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