New Zealand has had whistleblower protections in place for around 20 years, but the new and improved Protected Disclosures (Protection of Whistleblowers) Act 2022 has come into force on 1 July 2022.
Employers need to acquaint themselves with the new Act and ensure their policies are up to date and that they are sure of their obligations. Some of the key changes to be aware of are:
Serious wrongdoing’s definition has been expanded and extended to cover private sector use of public funds and now also includes behaviour that is a serious risk to the health and safety of any individual. This includes bullying and sexual harassment.
Reports of ‘serious wrongdoing’ can now be made ‘to an appropriate authority’ at any time, whereas previously this was only permitted in certain circumstances.
Sets out specifically what a receiver of a report of serious wrongdoing must do:
Within 20 working days inform the discloser what is being done with reasons - the receiver of the report must acknowledge to the discloser when the report was received, consider the disclosure and whether it warrants investigation, and check with the discloser whether the disclosure has been made elsewhere and what the outcome was, and deal with the matter (investigate, recommend action, refer to an appropriate authority, or decide no action needed).
Public sector organisations specifically need to update their internal policies. The new legislation sets out internal procedures that must be in place to state how they will provide support to disclosers. To ensure best practices, though they are not mandatory, private sector organisations would benefit from enacting similar policies.
If you haven’t already, urgently assess your current situation and the applicability of the updated rules for your business, and ensure that your business policies are up to date and meeting the new required standards.
What is serious wrongdoing?
Serious wrongdoing includes:
unlawful, corrupt or irregular use of public money or resources
conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law
any criminal offence
gross negligence or mismanagement by public officials.
Background of the Protected Disclosures Bill
|2000||The Act was passed||A media release by then State Services Minister, Rt Hon Trevor Mallard explains some of the background to the Act.|
|2003||Review by M Scholtens QC into the operation of the Act||The review highlighted a number of issues including inconsistent application of the Act and a perception that confidentiality of disclosers’ identity was not assured|
|2009||The Protected Disclosures Amendment Bill was passed||The purpose of the bill was to “give the Ombudsmen an enhanced guiding, reviewing, and investigating role in relation to disclosures of serious wrongdoing, with the Office of the Ombudsmen facilitating a collaborative cross-agency approach”|
|2017||An investigation occurred into the way whistleblowers were treated at the Ministry of Transport in relation to jailed fraudster Joanne Harrison. A review of the Act by the State Services Commission (the SSC) identified a number of areas where the current regime is unclear||As well as publishing the report of the investigation, the State Services Commissioner announced the SSC was developing options for how the Act could be modernised and made more user friendly, and issued standards for government agencies on systems for staff to raise issues.|
|February – March 2018||A targeted consultation with 38 organisations and individuals gathered perspectives on the Act and the different reform choices||The summary report noted that consultation highlighted weaknesses in the current regime|
|13 August 2018||Cabinet confirmed the decision to undertake a review and seek public feedback on five options for change|
|October 2018||A discussion document was released entitled Help Shape Improvements to the Protected Disclosures Act to Maintain New Zealand’s High Standards of Integrity||The document requested public feedback on options for change to the Act|
|April 2019||A summary report was published by the State Services Commission||The report summarises submissions made|
|24 June 2020||The bill was introduced|