1 Mar 2020

Whistleblowing law keeps media out of the loop

From Mediawatch, 9:10 am on 1 March 2020

Some huge issues of public interest have been revealed down the years by employees tipping off reporters. Major wrongs have been righted by the media applying the fabled ‘disinfectant of sunlight’. But a review of the law to shield whistleblowers won't protect anyone who lifts the lid with the media. 

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Photo: Flickr

Harvey Weinstein’s conviction for sex crimes this week wouldn’t have happened without the women who blew the whistle. Likewise the #MeToo movement, which drew momentum from the case. 

The journalists who told their stories in the media helped create an environment where others could speak out all around the world. 

Here in New Zealand, serious sexual misconduct at the law firm Russell McVeagh gave #MeToo momentum once it had been exposed by Newsroom.co.nz..  

But one of the reasons Weinstein's crimes and his conduct went unreported for so long was the damage blowing the whistle could do to the career of anyone brave enough speak up. 

And that holds true for all kinds of wrongdoing at work. 

Last week the Reserve Bank announced employees who spot something they think might be dodgy at an insurance company, bank or finance house now have a dedicated email address and special phone number they can use to raise the alarm.

While the move was barely reported here, the National Law Review in the US - established in 1888 - was interested but it concluded a whistleblower would be better off under US law. 

“This new program still has substantial drawbacks, including a lack of reward provisions to incentivise and support whistleblowing. It also lacks explicit protections against retaliation,“ it said. 

As it happens our whistleblowing law - the Protected Disclosures Act 2000- is currently under review. 

The Act is supposed to protect an employee who discloses serious wrongdoing, but they must follow the appropriate channels for making a protected disclosure. 

Anyone caught disclosing or leaking information to the media will not be protected - even if there’s a strong case that it’s in the public interest.

In 2015, security guard Lydia Moate - with the backing of her union - told the Dominion Post her employer encouraged staff to cheat in their training. 

There was nothing she or the union, the Employment Relations Authority  - or the newspaper - could do about her subsequent sacking. 

That case  - and others like it  - prompted the current government to review the law.  

“Anyone who raises issues of serious misconduct or wrongdoing needs to have faith that their role, reputation, and career development will not be jeopardised,” State Services Minister Chris Hipkins said at the time.  

One major change in the proposals revealed last week is allowing people to report serious wrongdoing direct to “an appropriate external authority”, rather than having to raise them first with the agency they work for.

But the media will not be one of those. 

The initial discussion document said “extending protections to people who report to the media could help expose serious threats to the public interest,” but  . . . :

“It’s complicated. People could simply get it wrong, or worse, deliberately make a false claim, which could cause unfair reputational damage to the people involved in the public domain.”

BusinessNZ echoed that in its submission. 

"Providing protection for such persons would unfortunately open the door to 'get even' complaints, which even if found to be untrue, would nevertheless tend to operate on a 'no smoke without fire' basis,” it said. 

Michael Macaulay launches the 'Clean as a Whistle' report for Transparency International in December 2019.

Michael Macaulay launches the 'Clean as a Whistle' report for Transparency International in December 2019. Photo: Transparency International NZ

The media weren't consulted before that discussion document was prepared. 

And in the only media submission before the deadline, TVNZ’s general counsel Brent McAnulty said this was based on the unfair assumption the media wouldn't investigate whistleblowers' claims before reporting them. 

“We can categorically state that this would never happen in our newsroom,” he said. 

McAnulty said compliance with Broadcasting Standards codes and Media Council principles also helps ensure accuracy and fairness - in addition to journalists’ own professional ethics. 

And if reporting does cause unfair reputational damage to a third party, it can sue for defamation. 

He cited examples of TVNZ reports of wrongdoing which were in the public interest: 

  • the melamine milk contamination where Fonterra managers knew about it but did not announce a public recall to stop parents feeding the milk to their babies

  • Pike River - where an employee complained about safety issues but management shut them down 

  • the reports of inappropriate behaviour by a coach at Cycling New Zealand which was not acted upon until 1 News revealed that concerns had previously been raised internally by both athletes and staff. 

In Australia, some states do protect workers who go to the media as a last resort.

For example, the New South Wales government protects those who have not had success having "honest concerns" properly investigated by a relevant higher authority.

A recent report into whistleblowing in Australia and New Zealand addressed best practice for serving the public interest.  

Clean as a Whistle was a follow-up to what's been described as one of the world’s largest studies into this.   

“There are a lot of positives in the potential reforms in the strengthening of the wording in the monitoring of whistleblowing complaints,“ said Victoria University of Wellington professor Michael Macaulay, one of the authors of Clean as A Whistle

“You can go to the media legitimately if it’s your last line of defence and people do.

"There were changes to the Australian Corporations Act just last year that are now in effect and they do protect people who go to journalists in specific circumstances.

"They need to inform the organisation about which they made the complaint. They have to wait 90 days for that to go nowhere and then have reasonable grounds to believe their complaint has not been dealt with properly  - and that it’s in the public interest."

The Clean As a Whistle report found going to the media is not a common course for whistleblowers. 

“Only 2 percent went outside their organisations in the first instance and never reported internally. Even within these figures, most ‘public’ reporting was not to the media, or at least not directly,“ said Clean As A Whistle

Does that mean there’s not much point in extending whistleblower protections to people who tip off the media? 

“I don’t think there would be an enormous amount of vexatious complaints and I don’t think the media would be all that interested in those complaints anyway," Macaulay told Mediawatch.

The conviction of Weinstein has only come about because of whistle-blowing by brave women, but it took years to lift the lid on his crimes. It shows the power of whistle-blowing - but also its limits. 

“The thing is just how many people spoke out and how many were silenced.

"We saw the same with the Jimmy Savile case in the UK. There were literally hundreds of people who came forward over decades and were blocked at every turn.

“People said about Weinstein that 'they knew.' They said the same about Jimmy Savile and about Bill Cosby. But if they all 'knew', why wasn’t something done?"

Macaulay thinks media reporting of the misconduct and abuse in the legal profession in New Zealand will go down in history.

“It’s also a good case study of organisational failures. These things didn’t go straight to the media and reporters. There were processes that were followed and they failed,“ he said.