Kari Schmidt, Gerrad Brimble, Geoff Bevan
It’s been almost a year since the Protected Disclosures (Protection of Whistleblowers) Act 2022 (the Act) came into force on 1 July 2022. If you haven’t done so already, now is a good time to consider whether your policies and procedures are up to date.
The Act effectively updates the previous Protected Disclosures Act 2000 to provide people who speak up about serious wrongdoing with greater protection. It also puts in place clearer procedures for dealing with disclosures.
A whistleblower includes a current or former employee, homeworker, secondee, contractor, volunteer, or board member, who makes a “protected disclosure” under the Act. To receive protection, a whistleblower must:
The Act defines “serious wrongdoing” as any conduct by a public or private organisation which:
The Act introduced a range of new protections for whistleblowers, with the aim of facilitating the disclosure and investigation of serious wrongdoing in New Zealand. These protections include:
While the Act is a positive development in terms of clarifying the law around whistleblowing in New Zealand, there are some points to be aware of.
First, “serious wrongdoing” has been expanded to now include conduct by any organisation (including private sector organisations) that is:
Whether conduct constitutes “misuse” of public funds, or is oppressive, unlawfully discriminatory, grossly negligent, or gross mismanagement will ultimately be a question for the person or entity receiving the disclosure to consider. The key point though, is that a whistleblower only has to “reasonably believe” serious wrongdoing has occurred to be protected under the Act.
Extending the definition of serious wrongdoing to include “serious risks to an individual’s health or safety” means the protected disclosures regime could potentially be used to disclose issues that are better addressed through employment law processes, such as allegations of bullying or harassment for example. The requirement to keep a discloser’s identity confidential sits uncomfortably with the natural justice principle that a person accused of misconduct is entitled to know the identity of their accuser. This could pose challenges for a receiver tasked with responding to an allegation of bullying or harassment made under the protected disclosures process. In practice we think a prudent approach when faced with this kind of situation will be to explain to a discloser the limitations that maintaining their anonymity will place on an employer’s ability to investigate their concerns.
Finally, although the Act provides some helpful guidance around what a receiver should do, a receiver does not have to do anything when they a receive a disclosure. The Ombudsman can in some circumstances refer the disclosure to a Minister or investigate where an organisation has not acted as it should under the Act or has not addressed the alleged serious wrongdoing. But a person has no right under the Act to take legal action because of a receiver’s failure to act in accordance with the Act’s recommendations.
In practice if a receiver does not respond to a disclosure, they run the risk the discloser will disclose further if they do not feel their concerns have been appropriately addressed. Many readers will no doubt be able to think of examples of organisations suffering damaging media coverage as a result of disgruntled employees “blowing the whistle.” Therefore, in many, if not most, cases following the guidance set out in the Act will be the right approach.
If you haven’t done so already, we recommend reviewing your whistleblowing policies and procedures to ensure they are updated to reflect the legislative requirements.
For assistance with reviewing your whistle blower policies, or if you’d like further advice on your obligations or rights under the Act, please contact our employment law team. Our thanks to Kari Schmidt and Gerrad Brimble for preparing this article.
Disclaimer: This article is general in nature and is not to be used as a substitute for legal advice. No liability is assumed by Gallaway Cook Allan or individual solicitors at Gallaway Cook Allan regarding any person or organisation relying directly or indirectly on information published on this website. If you need help in relation to any legal matter, we recommend you see a qualified legal professional.
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