Ep 97 N8 6th Dec 2023 The Whistle Blower

2 months ago

Tonight was a record zoom attendance! A super hot topic which has huge implications for our nation going forward

Liz takes us through Barry's lawful protections under the Protected disclosures Act and Employment Relations Act as they are linked together - No matter what agreement he had with his employer he is protected - The police had no business getting involved for this reason. We all know who they should be arresting!!

A super must watch and please share afr and wide - Applied Knowledge is Power!

1 – 00:01:04 – The main speaker is Liz Lambert, president of the Number 8 Workers’ Union of New Zealand. Erika speaks from 00:44:21 to 00:49:45.
- Liz is discussing the Protected Disclosures (Protection of Whistleblowers) Act 2022, which updated a previous Protected Disclosures Act 2000. No cases have been brought under either act yet..
- Barry had two separate situations. 1. Employment Relations Authority granted an ex-parte injunction to Te Whatu Ora to take down. See content link for the determination. 2. Criminal charges brought by police against Barry in District Court for allegedly stealing data. He is due to appear in court again December 18.
- There have been two determinations from the Employment Authority regarding termination of whistleblower Barry. One case involved redacting names, the other named the company Te Whatu Ora - Health New Zealand.
- Section 249 of the Crimes Act 1961 - Accessing computer system for dishonest purpose.
- Actus reus [a guilty act] & Mens rea [a guilty mind] – Police must proof without claim of right.
- However the Protection of Whistleblowers Act may present a solution.
- Concerns were raised about potential bias of an Employment Authority member Shane Kinley (Former MBIE policy director) involved in a recent case based on an OIA response. Liz questions the legality of this member's involvement.
- Discussion to revisit the zoom about Sue Grey’s OIA about Shane Kinley

2 – 00:09:25 – Liz is going through the Protected Disclosures (Protection of Whistleblowers) Act 2022 section by section.
- The Act replaced the previous Protected Disclosures Act and names the Public Service Commission as the administrator. The Public Service Commissioner is the head of all of the public servants. Public servants have to be politically neutral and they get a lot of protection under the under the New Zealand Bill of Rights. PSA governs the commission.
- Public servants have to be politically neutral. Section 12 PSA 2020
- Section 3: The purpose of the Act is to promote the public interest by facilitating a disclosure and timely investigation of serious wrongdoing in or by an organisation and by protecting the people who disclose in accordance with this act.
- Section 7: View the flowchart which gives an overview of how the Act applies to the discloser.
- Section 8: Meaning of a discloser, defines who can make a protected disclosure (whistleblower), including current/former employees, contractors, and members of the public engaging with an organization.
- Those in section 8 are also covered by the Health and Safety Work Act 2015. Those that are employees are also protected by the Employment Relations Act.
- Section 9: Meaning of protected disclosure. details what constitutes a protected disclosure - believing there is serious wrongdoing and disclosing in good faith.
- Section 10: Meaning of serious wrongdoing. Serious wrongdoing includes criminal offenses, health and safety risks, corruption, or mismanagement. Discussing which subsection would apply to disclosers.
- Subpart 2: What to do (disclosers and receivers.) Outlines how and to whom disclosures can be made, including internally, to oversight agencies like the Ombudsman, or Members of Parliament.
- Discussion about Barry’s interview on Alex Jones and Barry’s action to disclose to MoH and a MP.
- Receivers of disclosures like the Ministry of Health must acknowledge receipt within 20 days, but Barry was cut off from the system and fired instead of his disclosure being handled properly.

3 – 00:22:43 – Section 13: Guidance: What the receiver should do. The receiver of a disclosure (e.g. Ministry of Health) must acknowledge receipt within 20 working days. Plus more.
- Barry was cut off from the system and fired instead of his disclosure being properly handled.
- The Act outlines steps the receiver must take to address the disclosure, including investigating, informing the whistleblower of actions taken, and referring matters if needed.
- The Act protects the whistle-blower, not the MoH.
- Disclosures can be made to the Ombudsman or Minister/Speaker of Parliament regarding certain roles.
- Part 3: Protections include confidentiality unless the whistleblower consents otherwise.
- The second ERA determination disclosed Te Whatu Ora (MoH) but not the disclosers.
Section 20: Obligation not to retaliate or treat less favourably. Section 21: No retaliation by employer.
- Section 21 (2), Employers cannot retaliate against whistleblowers under the Act or Employment Relations Act section 103(1)(k). Barry could bring a personal grievance. 90 days to raise the PG.
- Sections 23 and 21 provide immunity from civil/criminal liability and protect whistleblowers from retaliation even if disclosure agreements or policies are violated. The police cannot prosecute Barry according to Section 23.
- This may be relevant to healthcare workers who received exemptions and could become whistleblowers to disclose information in the public interest. 11,005 operational exemptions.
- Silence is complicity. Maybe those exempt were made to sign an NDA, but according to Section 23 (2) they will be protected. The NDA will be of no effect. Don’t have to go to the employer, they can go straight to the Ombudsman

4 – 00:36:10 – The Ministry of Health and police responses have played into Liz’s hands as evidence of retaliation against the whistleblower.
- Barry could bring a personal grievance claim under the Employment Relations Act for unjustified dismissal and retaliation.
- Sections 23 and 21 provide protections and immunity even if employers pursue criminal charges or civil cases against whistleblowers.
- This case could set a precedent for whistleblowing in New Zealand and encourage more people to come forward, including about issues in other organisations like councils, public service and more.
- Extra positions created in Christchurch for Three Waters, even though the budget did not accommodate.
OPEN CHAT – 00:36:10 –
- Discussion on details of Barry’s sacking. Matthew Hague is Barry’s lawyer.
ERIKA – 43:10
- Payment databases like the immunization one leaked are important records as they relate to transactional payments.
- An Oracle database administrator would have access to cross-reference different health databases by unique identifiers like NHI numbers .Barry was an Oracle database administrator.
- The Te Whatu Ora (MoH) website states they have given out 12 million doses, the system leaked has 4 million doses. The 4 million is only the immunisation approved providers, not the pop ups, arenas, maraes etc.
- The oracle database administrator would look after many databases.
- Unique identifier is the National Health number NHI, can be cross refenced into other databases, including the coroner. Payment database is a reliable record.
- Comments from Shane Kinley trying to prevent discussing the leaked data doesn't apply to others not employed by the relevant agency due to whistleblower protections.
- Censoring truth is a sign of being ruled by criminals, per a quote from Edward Snowden about criminalising disclosure of information.
- Discussion of encouraging more whistleblowing to expose wrongdoing across the public sector and provide protections for people who do so.

5 – 00:49:45 – The injunction against the whistleblower could require the Ministry of Health to pay damages if it caused harm, as security is required for injunctions. It’s an offence for MoH to retaliate.
- Winston Peters as an MP cannot direct the police or interfere with criminal investigations due to separation of powers and constitutional rules. Note Stuart Nash ex police commissioner.
- There is debate around whether data from a public entity like Health is truly public information given taxpayer funding.
- Previous cases found information from councils and other public bodies should be publicly disclosed under Acts like the OIA and Meetings Act within 20 days. Discussing case about Tararua District Council 2004.
- Public sector employees may have rights to free speech and from the Bill of Rights Act through their employment agreements and the Public Service Act.
- An ongoing court case could determine if public servants can argue rights like free speech regarding their employment.
- Whistleblowing is an important form of free speech to expose wrongdoing by public bodies that greatly impact daily lives. More protection and transparency around public data and agencies may be needed.

6 - 01:03:20 – Barry has support around the world and knows he did the right thing by whistleblowing.
- The overblown response by authorities was meant to scare whistleblowers but may encourage more to come forward now.
- Discussions that the Protective Disclosures Act needs to be shared more to reassure potential whistleblowers.
- Medicines Act 1981: Section 20(3) discussed in relation to warranties on new medicines, which is not allowed.
- Section 129 Health Act 1956 - References to pursuing liability against reluctant individuals (who don’t whistleblow) under the Health Act.
- Suggestions that guilty parties in government panicked in their response to Barry.
- Praise for Barry's calm demeanor and accounts that he was treated well in prison by staff.
- Ongoing discussions of law and cases provide hopeful precedent to challenge overreach by authorities.
- Encouragement to keep exposing wrongdoing through lawful whistleblowing and upholding transparency.

Protected Disclosures (Protection of Whistleblowers) Act 2022:
Current New Zealand law protecting whistleblowers from reprisals. It came into force in July 2022.
Section 3 – The purpose
Section 7 - view the flowchart which gives an overview of how the Act applies to the discloser.
Section 8 - Meaning of a disclosure in this act.
Section 9 - Meaning of protected disclosure
Subpart 2 - To whom disclosures can be made
Sections regarding requirements for receivers of disclosures and protections for whistleblowers.
Section 14 - Guidance for receivers of disclosures
Section 16 - Referral of disclosures
Section 21 - Prohibition on retaliation
Section 23 - Immunity from liability

Public Service Commission information on Protected Disclosures (Protection of Whistleblowers) Act 2022

Section 12 Public Services Act 2020 - Public service principles
(1) In order to achieve the purpose in section 11, the public service principles are:
Politically neutral
(a) to act in a politically neutral manner; and

Determination 1 NZERA 718

Section 249 Crimes Act 1961 - Accessing computer system for dishonest purpose

Shane Kinley Current Member of the Employment Relations Authority (Dec 2022 - Present · 1 yr 1 mo)
Former MBIE - Policy Director - Workplace Relations & Safety (Apr 2013 - Dec 2022 · 9 yrs 9 mos), Policy Manager - Employment Relations – Department of Labour (Jan 1998 - May 2008 · 10 yrs 5 mos) https://number8.org.nz/wp-content/uploads/2023/11/MBIE-S-Kinley-Additional-emails-letters-and-versions-Redacted-PW-FREE.pdf

Employment Relations Act 2000:
Defines contract workers and relevance to whistleblower protections.

New Zealand Bill of Rights Act 1990:
Provides protections for political neutrality of public servants.

Can receive disclosures at any time under the Act.

Section 103 (1)(k) Employment Relations Act 2000:
Provides right to bring personal grievance for retaliation.

Official Information Act 1982:
Requires certain public information to be disclosed.

Local Government Official Information and Meetings Act 1987:
Requires council information to be disclosed.

Section 129 of the Health Act 1956 - Protection of persons acting under authority of Act

Section 20 (3) Medicines Act 1981 – Restrictions on sale or supply of new medicines
No consent given under this section shall be deemed to warrant the safety or efficacy of the medicine to which the consent relates.

The three must watch whistleblower videos from The Alex Jones Show are available here: Barry, Steve Kirsh, Hannah Spier and Liz Gunn

Steve Kirsch's newsletter

Constitutional Freedom of speech Case in NZ – Fundraiser
Freedom of speech, our most fundamental freedom has been under attack, especially for the last 3 years. At least, the New Zealand Court of Appeal will hear arguments (Amanda Jean Turner and Te Whatu Ora- Health New Zealand in Respect of the Former District health board CA652/2023.

Amanda Turner - Fundraiser and info on N8WUNZ website



In Queensland, Australia, the equivalent whistleblower protection legislation is the Public Interest Disclosure Act 2010.
Australia (national) - Commonwealth Public Interest Disclosure Act 2013
Queensland Act:
Section 40 prohibits reprisals against a person because they make a public interest disclosure. This is equivalent to Section 21 of the NZ Act.
Section 41 provides immunity from civil and criminal liability for public interest disclosures made in accordance with the Act. Equivalent to Section 23 of the NZ Act.
Commonwealth Act:
Section 22 prohibits detrimental action against public officials who make protected disclosures. Same as Section 21 NZ Act.
Section 26 provides immunity from civil, criminal and administrative liability for public interest disclosures made under the Act. Equivalent protection to Section 23 NZ Act.

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