New Regime for Protected Disclosures (Whistleblower legislation)

Wednesday 29 June, 2022

Protection for those who report matters of serious wrongdoing within an organisation has been in place since the commencement of the Protected Disclosures Act 2000, but that legislation has been reviewed and those protections expanded and strengthened. The Protected Disclosures (Protection of Whistleblowers) Act 2022 (“the Act”) commences on 1 July 2022, and contains enhanced procedures for local authorities and other public sector organisations in relation to the regime and protections under the Act.

The purpose of the new Act remains similar – the promotion of the public interest by facilitating the disclosure and investigation of serious wrongdoing while protecting those who disclose - but there are new provisions that mean organisations should re-visit their relevant policies and protocols for addressing protected disclosures.

Protected disclosure of serious wrongdoing

The Act entitles a discloser to protection for a protected disclosure about a serious wrongdoing made in good faith to their organisation or an appropriate authority, even if it transpires that they are mistaken and there is no serious wrongdoing. What constitutes ‘serious wrongdoing’ is defined in the Act, and now includes an act, omission, or course of conduct that is a serious risk to the health or safety of any individual, thereby expanding the scope of the protection from matters of public health and safety only  and opening an avenue for matters affecting an individual in their own right. The definition of serious wrongdoing now extends to oppressive, unlawfully discriminatory, or grossly negligent acts or omissions by a person acting on behalf of a public sector organisation, whereas previously this applied only to the behaviour of a public official.

Manner of disclosure

Previous constraints on the manner of disclosure have also been relaxed. A disclosure may now be made either in accordance with any internal procedures, or to the head or deputy head of the organisation. A disclosure may also be made at any time to an appropriate authority such as any officer of Parliament (but not a member of Parliament), the Human Rights Commission, the Ombudsman, the Controller and Auditor-General, and others listed in Schedule 2 of the Act.

Guidance in the Act

New to the Act is guidance on what should be done by the receiver of a protected disclosure. The disclosure should be:

• properly acknowledged.
• consideration given to whether further investigation is warranted.
• a check made as to whether the disclosure has been made elsewhere.
• dealt with by investigation, addressing any wrongdoing, referring the disclosure elsewhere, or deciding no action is required; and
• the discloser advised of the outcome together with reasons.

All of the above should ideally happen within 20 working days, but when it is “impracticable” to do so, the discloser should be informed and kept up to date.

Publish internal procedures

Public sector organisations are required to have widely published internal procedures to address protected disclosures, and these have been expanded so that they need to:

• be consistent with the guidance in the Act
• refer to the provisions in the Act against retaliation and victimisation
• describe the process whereby the disclosure might be referred to another organisation
• explain what practical assistance and advice is available, and
• describe how the duty of confidentiality will be met.

Duty of confidentiality

There are also changes to the duty of confidentiality. While there are specified exceptions to the requirement that a receiver of a protected disclosure must use their best endeavours to keep confidential information that might identify the discloser, there is now also a requirement for consultation with the discloser before releasing that information under those provisions and the discloser must be informed of the fact of the release.

Help is at hand

We can assist to ensure your policy aligns with the new act or assist in the preparation of a policy if you do not already have one. Please get in touch with one of our experts below.