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Whistleblowing: The Protected Disclosures Act

Key Takeaway

The Protected Disclosures Act 2022 provides a framework for disclosing serious wrongdoing in New Zealand workplaces. It protects individuals who make disclosures in good faith and with reasonable belief, from retaliatory action. Organisations have obligations to handle disclosures appropriately. Retaliatory actions can constitute a personal grievance under the Employment Relations Act 2000.

Understanding Whistleblowing: The Protected Disclosures Act 2022

In New Zealand, the Protected Disclosures Act 2022 (the Act) provides a legal framework for individuals to report serious wrongdoing within an organisation, commonly known as whistleblowing. The Act aims to encourage and protect those who speak up by offering safeguards against retaliation and outlining obligations for organisations receiving such disclosures.

What is a Protected Disclosure?

A protected disclosure is a disclosure of information about serious wrongdoing in or by an organisation, made in good faith and with a reasonable belief that the information is true or likely to be true [Source: Protected Disclosures Act 2022, s 8].

Serious wrongdoing is broadly defined and includes conduct that constitutes:

  • An offence (e.g., criminal activity) [Source: Protected Disclosures Act 2022, s 9(a)].
  • A serious risk to public health or safety, or the environment [Source: Protected Disclosures Act 2022, s 9(b)].
  • A serious risk to the maintenance of law, including the prevention, investigation, and detection of offences, and the right to a fair trial [Source: Protected Disclosures Act 2022, s 9(c)].
  • Unlawful, corrupt, or irregular use of public funds or resources [Source: Protected Disclosures Act 2022, s 9(d)].
  • Oppressive, unlawfully discriminatory, or grossly negligent behaviour, or gross mismanagement [Source: Protected Disclosures Act 2022, s 9(e)].
  • An act or omission that is a serious risk to the health or safety of any individual [Source: Protected Disclosures Act 2022, s 9(f)].

Who Can Make a Protected Disclosure?

An individual who makes a protected disclosure is called a discloser. This can include current or former:

  • Employees [Source: Protected Disclosures Act 2022, s 5(a)(i)].
  • Contractors [Source: Protected Disclosures Act 2022, s 5(a)(ii)].
  • Volunteers [Source: Protected Disclosures Act 2022, s 5(a)(iii)].
  • Board members or office holders [Source: Protected Disclosures Act 2022, s 5(a)(iv)-(vi)].
  • Any other person who performs services for an organisation, whether paid or unpaid [Source: Protected Disclosures Act 2022, s 5(a)(vii)].

To Whom Can a Disclosure Be Made?

1. Internal Disclosures:

Disclosures should generally be made internally to the organisation first. This can be to:

  • A manager or supervisor [Source: Protected Disclosures Act 2022, s 10(1)(a)].
  • A person authorised by the organisation to receive disclosures [Source: Protected Disclosures Act 2022, s 10(1)(b)].
  • The chief executive or equivalent, or a board member [Source: Protected Disclosures Act 2022, s 10(1)(c)].

2. External Disclosures:

If the discloser believes the organisation has not acted on the disclosure, or if they reasonably believe the serious wrongdoing could involve the organisation's chief executive or board, they may make a disclosure to an appropriate authority [Source: Protected Disclosures Act 2022, s 11(1)(b)]. An appropriate authority is a public sector organisation with powers to investigate or act on the serious wrongdoing, such as the Ombudsman, Auditor-General, Serious Fraud Office, or the Police [Source: Protected Disclosures Act 2022, Schedule 1].

3. Disclosures to Other Persons (e.g., media, public):

Disclosing serious wrongdoing to persons other than the organisation or an appropriate authority (e.g., to the media or publicly) is permitted only in specific, limited circumstances. These circumstances typically involve an urgent and serious risk to public health or safety, or the environment, or where the discloser reasonably believes the organisation and appropriate authority have failed to act [Source: Protected Disclosures Act 2022, s 12]. There are stringent requirements for such disclosures to be protected.

Protections for Disclosers

Individuals who make a protected disclosure are afforded several protections under the Act:

  • Protection from retaliatory action: A discloser is protected from retaliatory action, which includes dismissal, disadvantage in employment, discrimination, harassment, or other actions that harm the discloser for making the disclosure [Source: Protected Disclosures Act 2022, s 13(1), (3)].
  • Immunity from civil and criminal liability: A discloser is not liable for civil or criminal proceedings for making the protected disclosure [Source: Protected Disclosures Act 2022, s 14(1)].
  • Confidentiality of identity: The identity of the discloser must generally be kept confidential unless they consent to its disclosure, or where disclosure is required by law or necessary for an investigation and the discloser's safety is protected [Source: Protected Disclosures Act 2022, s 15].

Relationship with the Employment Relations Act 2000

The Protected Disclosures Act 2022 works in conjunction with general employment law provisions. If a discloser suffers retaliatory action as a result of making a protected disclosure, this may constitute a personal grievance under the Employment Relations Act 2000 (ERA 2000) [Source: Employment Relations Act 2000, s 103(1)(eb)].

A personal grievance is a claim an employee may have against their employer if they believe they have been treated unfairly in their employment. Types of personal grievances include:

  • Unjustifiable dismissal [Source: Employment Relations Act 2000, s 103(1)(a)].
  • Unjustifiable disadvantage [Source: Employment Relations Act 2000, s 103(1)(b)].
  • Discrimination [Source: Employment Relations Act 2000, s 103(1)(c)].
  • Sexual harassment [Source: Employment Relations Act 2000, s 103(1)(d)].
  • Racial harassment [Source: Employment Relations Act 2000, s 103(1)(e)].

An employee who believes they have a personal grievance must raise it with their employer within 90 days of the action occurring or becoming known to them [Source: Employment Relations Act 2000, s 114(1)].

Obligations on Recipients of Disclosures

Organisations that receive a protected disclosure have obligations to:

  • Acknowledge receipt of the disclosure [Source: Protected Disclosures Act 2022, s 16(2)(a)].
  • Consider the disclosure and take appropriate action to address the alleged serious wrongdoing [Source: Protected Disclosures Act 2022, s 16(2)(b)].
  • Keep the discloser informed about the progress of the investigation and any action taken [Source: Protected Disclosures Act 2022, s 16(2)(c)].
  • Protect the identity of the discloser [Source: Protected Disclosures Act 2022, s 15].
  • Public sector organisations are required to have internal procedures for receiving and dealing with protected disclosures [Source: Protected Disclosures Act 2022, s 17(1)]. Private sector organisations are encouraged to do the same [Source: Protected Disclosures Act 2022, s 17(2)].

When to Seek Independent Legal Advice

Individuals seeking to make a protected disclosure, or those who believe they have suffered retaliatory action, are encouraged to seek independent legal advice. Advice can be obtained from qualified legal professionals, organisations such as the Ombudsman, or Community Law Centres for free legal help. Employers receiving disclosures may also benefit from legal advice to ensure compliance with their obligations under the Protected Disclosures Act 2022.

Key Resources