The Protected Disclosures (Protection of Whistleblowers) Act 2022
Karyn Gould
The new Protected Disclosures (Protection of Whistleblowers) Act 2022 came into force 1 July 2022. The Act continues the previous Act’s purpose, 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 (disclosures). The key differences of the new Act are focused on improving clarity on:
- The language used, and what constitutes serious wrongdoing
- how disclosures should be made and handled
- the process for external disclosures
1. Definition of serious wrongdoing
The New Act extends the definition of serious wrongdoing in several ways. The definition now captures conduct:
- That creates a serious risk to the health and safety of an individual. Law Firm, Simpson Grierson, pointed out in an article that “In light of the treatment of bullying and harassment as a workplace health and safety risk (both by WorkSafe New Zealand (WorkSafe) and the Ministry of Business, Innovation and Employment (MBIE)), this wording would appear to cover disclosures about bullying and harassment. This is supported by “bullying or harassment, including sexual harassment” being listed as an example of a concern that could be raised in a protected disclosure under the Bill (for which WorkSafe and the Human Rights Commission are listed as the corresponding “appropriate authorities”).”
- That is oppressive, unlawfully discriminatory or grossly negligent conduct (or gross mismanagement) by a public sector employee or any person acting on behalf of a public sector organisation or the Government.
- Expanded to include unlawful, corrupt or irregular use of all “public funds or resources”.
2. Handling disclosures
The new Act sets out guidance for receivers about what to do after receiving a protected disclosure, whether the receiver is a public sector organisation, a private organisation, or an appropriate authority. The new Act lists a series of actions that the receiver has to complete with 20 working days of receiving the disclosure.
3. External disclosures
The new Act outlines that a whistleblower may make a disclosure directly to an appropriate authority at any time, not only where they believe the head of the organisation may be involved in the serious wrongdoing etc.
The meaning of appropriate authority has also been clarified, and a list of examples of appropriate authorities (along with the nature of concerns they deal with) is included as a schedule to the new Act.
What should you do as an Employer?
Have a policy and procedure in place and communicate it to your team. As part of setting this up, nominate and upskill dedicated team members to handle disclosures.
Be clear on any intersection between your Protected Disclosures Policy and other policies or practices you may have in place, such as Health & Safety, Bullying & Harassment, Privacy, and Performance Management. Once a disclosure is made you don’t want to be clambering around, uncertain about what process you should be following, or who has responsibility for following through on it.
