Sir John Robertson, chief ombudsman in the mid-1980s, advocated legislation to protect whistleblowers – public servants who had revealed wrongdoing within their organisations. However, the 1990 public service code of conduct threatened disciplinary action for unauthorised release of any information, no matter what the motive. By the early 1990s ombudsmen had received several complaints of victimisation from whistleblowers.
Under the Protected Disclosures Act 2000, public-sector employees can reveal serious wrongdoing and claim legal protections against liability or adverse treatment. Types of misconduct which may justify disclosure include:
- misuse of public funds
- acts that pose serious risk to public health or safety
- acts that undermine maintenance of the law, particularly the prevention, investigation and detection of offences and the right to a fair trial
- criminal offences.
An employee is expected to raise a concern with the head of the organisation first, unless there is reason to believe that person is involved in the serious misconduct. If this is the case, or if the employee speaks out but no action is taken within a reasonable time, the matter can be referred to the ombudsmen, one of a number of senior officials or a cabinet minister.
A warning whistle
In 1994 Neil Pugmire, then a nurse at Lake Alice Hospital, expressed concern to management about the release of dangerous psychiatric patients into the community. One such patient kidnapped and attempted to sexually violate a young boy, and indecently assaulted two other children. When Pugmire’s complaints were not taken seriously, he went public, gaining considerable sympathy. He was suspended and then dismissed from his job, but later reinstated by the Employment Court.
Dealing with allegations
A person to whom a disclosure is made must take all appropriate steps to have the allegation addressed. In the case of the ombudsman, this may mean using their investigatory powers to ascertain the facts. The ombudsman must also give guidance to public-sector organisations on how they should deal with whistleblowers’ disclosures.
A person to whom a disclosure is made must try to keep the whistleblower’s identity confidential unless the whistleblower consents to have it released. An employer cannot retaliate against a whistleblower who has made a disclosure to an authorised person. A disclosure made in good faith is immune from legal liability under the Protected Disclosures Act 2000.