Changes to protected disclosures framework for organisations.

30 May 2022

The Protected Disclosures Act 2000 (Act) will be repealed and replaced by the Protected Disclosures (Protection of Whistleblowers) Bill (Bill) on 1 July 2022.

The Bill has been introduced to provide better protection for whistleblowers in New Zealand workplaces; and to promote the public interest by facilitating the disclosure and investigation of serious wrongdoing in the workplace.

Some of the key changes in the Bill include clarifying the definition of serious wrongdoing, enabling people to report serious wrongdoing directly to an appropriate authority at any time, strengthening protections for disclosers, clarifying the internal procedure requirements for public sector organisations, and detailing the type of adverse conduct disclosers may face.

What is Serious wrongdoing?

The definition of serious wrongdoing has been expanded to include any act, omission, or course of conduct by any organisation that is a serious risk to the health or safety of any individual.

If the serious wrongdoing alleged in a protected disclosure involves bullying, for example, it may be difficult for the employer to complete a workplace investigation and protect the confidentiality of the discloser.

The receiver of the disclosure can decide that no action is required if the matter is better addressed by other means, for example under a staff complaints policy. However, a discloser will be protected if the conduct in their disclosure fits the definition of serious wrongdoing and the disclosure is made in accordance with the processes set out in the Bill.

Disclosure to appropriate authority

The old Act provided protections for disclosures that were made to an appropriate authority only in certain circumstances. The new Bill protects disclosers for disclosures made to an appropriate authority at any time, and this protection applies whether or not the discloser has first made the disclosure to their organisation. Schedule 2 of the Bill provides a list of appropriate authorities relating to specific concerns (i.e. WorkSafe New Zealand is an appropriate authority to raise concerns about work related Health and Safety).

Additionally, the Bill now clearly provides protection for a person who discloses information in support of, or relating to, a protected disclosure.

Receiving a protected disclosure

The Bill provides guidance around the processes to follow when receiving a protected disclosure. If the receiver decides that no action is required in relation to the disclosure, they should now inform the discloser of this decision as well as the reasons for their decision. We note this is guidance only as the Bill does not confer any legal rights nor impose legal obligations on any person that would be enforceable in a court of law.

The Bill requires public sector organisations to have internal procedures that deal with protected disclosures. These must be published widely, including information about the existence of the procedures and adequate information about how to use them.

Although the same obligations do not attach to private entities, having internal procedures and policies that deal with protected disclosures can be beneficial to avoid uncertainty in the event a protected disclosure is made.

What does this mean for you or your business?

With the changes coming into force on 1 July 2022, organisations should evaluate whether any internal policies need to be updated and if any training is necessary.

We are happy to assist if you have any questions regarding the Bill, including providing advice on how it may impact you or your business, or assistance with drafting or reviewing internal policies.

Commercial Disputes & Employment Team