Preparing for the New Zealand Protected Disclosures (Protection of Whistleblowers) Act – Update #2

We begin this article with a summary of some recent important changes to New Zealand’s Whistleblowing regime.

Protected Disclosures (Protection of Whistleblowers) Bill

On 29 March 2021, the Final report of the Education and Workforce Committee into the Protected Disclosures (Protection of Whistleblowers) Bill was published.

The Education and Workforce Committee has examined the Protected Disclosures
(Protection of Whistleblowers) Bill and recommends that it be passed with certain
amendments that the Minister for the Public Service should consider.

One of these amendments is to clarifying “serious wrongdoing”. According to the Committee, many submitters said that the definition of “serious wrongdoing” in clause 10 is too narrow to capture “red flags” within the workplace that could be indicators of fraud, corruption, or unlawful behaviour. Submitters gave examples of wrongful behaviour, including bullying, harassment, or maltreatment of vulnerable people that was not regarded by employers or external authorities as meeting the criteria of “serious wrongdoing”.

The Committee notes that the behavioural aspects of the definition are focused on serious and immediate risks or hazards, rather than issues that could have ongoing or cumulative
effect on an individual or individuals. They are also aware of concern that staff may use protected disclosures to raise issues that are personal grievances and not serious wrongdoing.

On balance, the Committee considers that the bill provides for this situation already. Clause 14(2)(c) sets out the options given to receivers, including deciding that “the matter is better addressed by other means”. Further, including more specific references to wrongful behaviour towards individuals, putting individuals at risk, or breaching their human rights could help address some of the issues raised in submissions.

We discuss in more detail below, some salient points from the Final report.

The Protected Disclosures Bill which when enacted becomes the Protected Disclosures (Protection of Whistleblowers) Act 2021. The enactment date is set as 1 July 2021, replacing the Protected Disclosures Act 2000.

The committee considering this current Bill and having regard to the submissions made, have proposed a complete redraft of the Bill.  In short, they have:

  • clarified the definition of serious wrongdoing;
  • enabled a person to report serious wrongdoing to an appropriate authority;
  • strengthened protection for disclosers;
  • set out internal procedure requirements for the public sector; and
  • clarified the forms of adverse conduct a discloser may face.

In brief the proposed new Act sets out the following:  

The definition of organisation remains the same i.e. body of persons (including one employer and one or more employees – corporate or unincorporate – public or private sector.

A discloser of an organisation can be:

  • an individual who is employee or former employee;
  • a homeworker;
  • a secondee;
  • an individual engaged or contracted to work for organisation;
  • an individual concerned in management;
  • a member of armed force; or
  • a volunteer working for organisation without reward.

A disclosure is a protected disclosure if the discloser believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the disclosers organisation and discloses information about that in accordance with the Act and does not disclose it in bad faith.

Serious Wrongdoing has been clarified and re-written to now be: any act, omission, or course of conduct in or by any organisation that is one or more of the following:

  • An offence;
  • A serious risk to public health, public safety or the environment;
  • A serious risk to the maintenance of law including the prevention, investigation and detection of offences or the right to a fair trial;
  • An unlawful, a corrupt, or an irregular use of public funds or public resources;
  • Oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement, and is done by act or omission by:
    • An employee if the organisation is a public sector organisation;
    • A person performing or purporting to perform a statutory function or statutory duty or exercising or purporting to exercise a statutory power; or
    • A person performing or purporting to perform a function or duty or exercising of purporting to exercise a power on behalf of a public sector organisation.

Definition of receiver means the receiver of a protected disclosure who is either the organisation concerned or an appropriate authority.

Disclosers are entitled to a range of protections if the protected discloser  is made in accordance with the relevant section of the Act to their organisation or to an appropriate authority if:

  • it is made in accordance with any internal procedures;
  • to the head or deputy head of the organisation;
  • if they are mistaken and there is no serious wrongdoing;
  • they do not refer to Act when making disclosure;
  • they technical failure to comply with this section; or
  • they make disclosure to another person as long as it is on confidential basis and for purpose of seeking advice.

Receivers of a protected disclosure have their obligations set out fully in the act including a time limit of 20 days to carry out their obligations as set out under the Act.