How whistleblowing in New Zealand works

Wednesday, 18 January 2017

New Zealand has no Chelsea Manning equivalent.

EXPLAINER: With just days of his presidency remaining, Barack Obama has commuted the sentence the Chelsea Manning, cutting her 35 year sentence 28 years short.

This dramatic move has prompted a wide range of reaction, from joy to condemnation.

Even with the new release date, Manning's seven years inside is already the longest any American has served for whistleblowing.

And it isn't just in the United States - no New Zealander has ever served a sentence anything close to that - but whistleblowing does happen.

WAIT, WHAT IS WHISTLEBLOWING?

Broadly, whistleblowing is when someone inside a private or public entity calls attention to the fact that the institution they work for is doing something unethical. It usually involves the release of confidential information.

That 'unethical' thing is where things can get blurry. While many whistleblowers reveal clear criminality - a public company lying to their shareholders, for example - some whistleblowing falls more into the grey area, especially when the government is the one at fault, and the information involved is classified.

While the 'whistle' implies publicity, whistleblowing does not necessarily involve the public - it might just be a quiet word to a regulator, or the head of the organisation.

IS WHISTLEBLOWING LEGAL HERE?

In a limited set of circumstances, yes. There's an entire regulatory regime set up around 'protected disclosures'. If your leak is protected you aren't just free from lawsuits - technically, you aren't even allowed to be fired over it.

A wide array of government agencies receive such disclosures, including police, the Serious Fraud Office, the Commerce Commission, the Financial Markets Authority, Inland Revenue, and the Parliamentary Ombudsman.

But you can't just jump directly to them - the rules are that you should first try to report any wrongdoing internally, either through an official channel for such things or directly to the head of your organisation. Most government agencies and larger companies should have one of those official channels, but you can bypass them if you believe that the people you are meant to report wrongdoing to are involved in the wrongdoing themselves.

You'll notice that 'the media' and 'Wikileaks' aren't on that list above. New Zealand law does not offer you legal protection for leaking to the press or any other non-governmental body. But you can understand why it still happens - there are many things that people consider 'wrong' that a governmental regulator will do nothing about, but concerted public pressure is a powerful thing.

Even if you do try to do it all right, whistleblowing is an extremely risky prospect.

SO WHAT HAPPENS IF YOU GET CAUGHT?

Right now, a hodgepodge of different laws protect official or confidential information from release.

The Crimes Act 1961 stipulates a three year maximum sentence for anyone releasing information 'with intent to prejudice the security or defence of New Zealand'. That would probably be the tool the New Zealand government would use to prosecute a Kiwi Chelsea Manning or Edward Snowden.

Meanwhile, the Summary Offences Act 1981 stipulates a three month maximum sentence for the release of official information concerning monetary policy or other less security-related confidential information.

But this will all change soon. Comprehensive new legislation for governing our intelligence agencies includes the creation of a new offence for people who improperly communicate, retain, or copy classified information.

This new offence carries a maximum sentence of five years. The bill supporting it is currently before Select Committee and should pass in 2017.

HAVE WE EVER HAD ANYTHING LIKE THE WIKILEAKS DUMP HAPPEN HERE?

Not really, no. Smaller scale leaks happen quite often, but New Zealand has never seen a large scale public info dump on the scale of the Iraq and Iran war logs that Chelsea Manning released, or the inside look at the NSA provided by Edward Snowden.

Part of this is just scale - the New Zealand government just does a whole lot less around the world than the most powerful country we've ever seen does.

Furthermore, leaks on this scale are quite new altogether, the result of technological advances as much as unethical government practices. The Pentagon Papers in the 1970s couldn't just suddenly pop up online - they had to go through The New York Times.

Yet as the world grows more and more connected, the chances of a large-scale New Zealand leak grow.