New Whistleblower Legislation in New Zealand
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New Whistleblower Legislation in New Zealand
One Asia Lawyers Compliance Newsletter
The Protected Disclosures (Protection of Whistleblowers) Bill 2022, which was first introduced to the Parliament of New Zealand in 2020, has received royal assent as of 13th May 2022. The Bill will come into force as the Protected Disclosures (Protection of Whistleblowers) Act 2022 (“PDA 2022”) on 1st July 2022, replacing the Protected Disclosures Act 2000 (“PDA 2000”). The PDA 2022 will continue the purpose of the PDA 2000, which is to facilitate the disclosure and investigation of serious wrongdoing in the workplace, and to provide protection for employees and other workers who report concerns. However, the PDA 2022 makes changes to address identified issues and improve protections for whistleblowers, as explained below.
1, Expansion of the definition of ‘serious wrongdoing’
The current definition of ‘serious wrongdoing’ will be expanded to include private sector use of public funds and authority.[1] The PDA 2000 defines ‘serious wrongdoing’ as meaning (among other things) unlawful, corrupt or irregular use of funds or resources of a public sector organisation.
The new definition will also cover oppressive, improperly discriminatory, or grossly negligent conduct or gross mismanagement by any person performing a function or duty or exercising a power on behalf of a public sector organisation or the Government. [2] Currently, this type of conduct only applies in relation to public officials, but this change will ensure that private sector bodies are also captured by the new definition.
Thirdly, ‘serious wrongdoing’ will also include behaviour that is a serious risk to the health and safety of any individual (which could include instances of bullying and harassment).[3]
2, Disclosers able to report serious wrongdoing directly to an appropriate authority at any time
Under the PDA 2000, disclosers may only report serious wrongdoing to an appropriate authority in certain circumstances. Namely, if they believe on reasonable grounds that the head of the organisation is involved in the serious wrongdoing, that the matter is urgent or that there has been no action on the matter within 20 working days after the date on which the disclosure was made.[4]
The PDA 2022 stipulates that a discloser is entitled to protection for a protected disclosure made to an appropriate authority at any time. It also includes a new schedule containing examples of the most likely appropriate authorities and examples of the nature of concerns they deal with.[5]
3, Clarification of the definition of ‘protected disclosure’
The PDA 2022 clarifies the definition of ‘protected disclosure’ as follows:
A disclosure of information is a protected disclosure if the discloser (a) believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the discloser’s organisation, and (b) discloses information about that in accordance with this Act; and (c) does not disclose it in bad faith.[6]4, Internal procedure requirements for public sector organisations
Every public sector organisation must have appropriate internal procedures that set out the process for the organisation to follow as the receiver of a protected disclosure and identify who in the organisation a protected disclosure may be made to. These procedures must be published widely and republished at regular intervals.[7] The PDA 2022 imposes an additional requirement to include a description of how the organisation will provide practical assistance and advice for disclosers (for example, by having a support person assess any risks to a discloser) within the internal procedures.[8]
5, Clarification of potential forms of adverse conduct faced by disclosers
The PDA 2022 introduces an obligation on employers not to retaliate against disclosers,[9] and an obligation (applicable to all persons) not to treat the discloser less favourably than they would other persons.[10]
Under the PDA 2022, ‘retaliate’ means doing or organising to do any of the following: (i) dismissing the employee; (ii) refusing or omitting to offer to the employee the same terms of employment, conditions of work, fringe benefits or opportunities as are made available to other employees who are at the same or similar level; (iii) subjecting the employee to any unusual detriment or disadvantage; (iv) retiring the employee, or requiring or causing them to retire or resign.
Under the second new obligation relating to victimisation, a person must not treat (or threaten to treat) the discloser less favourably than they would treat other persons in similar circumstances because the discloser (or their relative or associate): (i) intends to make, or has made, a protected disclosure under the Act; (ii) has encouraged another person to make a protected disclosure; or (iii) has given information in support of, or relating to, a protected disclosure. This obligation also applies where the person believes or suspects that the discloser (or their relative or associate) intends to do, or has done, anything described in (i), (ii) or (iii).
[1] Section 10(d) of the PDA 2022.
[2] Section 10(e)(ii) of the PDA 2022.
[3] Section 10(b)(iii) of the PDA 2022.
[4] Section 9 of the PDA 2000.
[5] Schedule 2 of the PDA 2022.
[6] Section 9 of the PDA 2022.
[7] Section 11 of the PDA 2000 and section 27 of the PDA 2022.
[8] Section 27(2)(c)(vi) of the PDA 2022.
There are no similar requirements for private sector organisations, however it is recommended that they establish similar internal procedures for protected disclosures.
[9] Section 19 of the PDA 2022.
[10] Section 20 of the PDA 2022.
