The Protected Disclosures (Protection of Whistleblowers) Act 2022: A whistle-stop tour

The Protected Disclosures (Protection of Whistleblowers) Act 2022 (New Act) received the royal assent on 13 May 2022.  Rather than tidying the provisions in the Protected Disclosures Act 2000 (Old Act), the New Act, which will come into force from 1 July 2022, is a complete redraft of the Old Act and sets down a new and improved whistleblowing regime.

While replacing the Old Act, the New Act maintains its predecessor’s purpose, which is to promote the public interest by facilitating the disclosure and investigation of serious wrongdoing in the workplace, and by protecting employees who make disclosures.

This alert outlines the key changes the New Act makes to the whistleblower protection framework and discusses some of its differences with the counterpart regimes in Australia and the United Kingdom (UK).

Key changes

The New Act is a response to concerns raised during a public consultation on the Old Act held in late 2018.  These concerns were that both organisations and employees were confused about when to use the Old Act, and it was unclear how disclosures should be made and handled.  Moreover, the process for external disclosures was difficult to follow and there was a lack of confidence in the protections available to whistleblowers, leading to a reluctance to speak up.

As well as simplifying the language of the Old Act and making whistleblowing more accessible, the New Act addresses the above concerns by making the following key changes:

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.
  • The New Act applies to 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. By contrast, the Old Act only applies to such conduct if it is engaged in by a “public official”.
  • Where the Old Act’s definition of serious wrongdoing covers the unlawful, corrupt or irregular use of “funds or resources of a public sector organisation”, the New Act reframes this as any such use of “public funds or resources”.
2. Direct disclosures to an appropriate authority at any time The New Act provides that a whistleblower may make a disclosure directly to an appropriate authority at any time.  This differs from the Old Act, which states that a whistleblower can only go directly to an appropriate authority in certain circumstances (where they believe the head of the organisation may be involved in the serious wrongdoing, the matter is urgent, or a disclosure has not been actioned).  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.  For example, concerns relating to education services would go to the Ministry of Education or Education Review Office, while concerns about professional or trade conduct would go to the Ministry of Business, Innovation and Employment.
3. Steps receivers should take 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 provides that within 20 working days of receiving the disclosure, the receiver should (i) acknowledge the date the disclosure was received and, if the disclosure was made orally, summarise the receiver’s understanding of the disclosure; (ii) consider whether the disclosure warrants investigation; (iii) check with the whistleblower whether the disclosure has been made elsewhere; (iv) deal with the matter by investigating it, acting or recommending action, referring the disclosure elsewhere, and/or deciding that no action is required; and (v) inform the whistleblower, with reasons, about what the receiver has done or is doing to deal with the matter.
4. Internal procedures for public sector organisations The New Act maintains the requirement for public sector organisations to have appropriate internal procedures for dealing with protected disclosures.  However, while the Old Act requires that these procedures (i) comply with natural justice principles, (ii) identify potential receivers, and (iii) refer to the ability to disclose to other persons in some circumstances, the New Act goes further.  The New Act provides that, along with the Old Act’s requirements at (i) and (iii), the internal procedures must be consistent with the steps set out in 3 above and include certain details (such as a reference to the protection against retaliation and a description of how the organisation will provide practical assistance and advice to whistleblowers).
5. Potential forms of adverse conduct Unlike the Old Act, the New Act clearly sets out obligations on employers not to retaliate against whistleblowers and on other persons not to treat whistleblowers less favourably.  The New Act fills a previous gap in the law by clearly defining the term retaliate, which means doing or organising to do any of the following: (i) dismissing the employee; (ii) failing to give the employee the same employment terms, benefits or opportunities as other employees who are at a similar level; (iii) subjecting the employee to any unusual detriment or disadvantage; or (iv) retiring the employee or causing them to retire or resign.  This definition largely mirrors the definitions of unlawful discrimination in employment set out in the Human Rights Act 1993 and Employment Relations Act 2000 (ERA).  The New Act also makes several consequential amendments to other legislation, such as adding employer retaliation against a whistleblower to the list of personal grievances in section 103 of the ERA.

Comparisons with Australia and the UK

New Zealand appears to sit in between the UK and Australia in terms of the comprehensiveness of each country’s whistleblowing regimes.

The federal whistleblowing laws in Australia are set out in the Public Interest Disclosure Act 2013 for public sector organisations, and the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 for private organisations.  The UK regime is governed by the Public Interest Disclosure Act 1998, which is incorporated into the Employment Rights Act 1996.  The New Act and the Australian and UK positions differ in three primary respects:

  • Whistleblowing policies and processes: As outlined above, the New Act sets out recommended steps that all receivers should take upon receiving a protected disclosure.  However, only public sector organisations are required to actually maintain and publish whistleblowing policies.  The system in Australia is the converse: while both public and private sector organisations must establish procedures for dealing with disclosures, only public companies and large proprietary companies are required to publish whistleblowing policies.  In the UK, there is no requirement for employers to have in place a whistleblowing policy, and no prescribed process for how disclosures should be handled.
    We consider that private organisations would be well served to adopt whistleblowing policies in line with the public sector requirements.  Employees are organisations’ first line of defence, and clear reporting mechanisms will help detect and prevent serious wrongdoing (as well as other problematic conduct that may fall short of this definition).
  • Confidentiality: The protections around confidentiality in the New Act provide that receivers must use their best endeavours to keep confidential any identifying information about the whistleblower.  These protections remain largely unchanged from the Old Act (bar a new ability to disclose the whistleblower’s identity for law enforcement purposes).  The equivalent provisions in Australia are more stringent: they prohibit any person, not just the receiver, from disclosing identifying information, and they make breach of these rules a criminal offence.  The UK regime, on the other hand, is silent on the issue of confidentiality.
  • Adverse conduct and protections: The three jurisdictions use different terms to describe the adverse conduct that whistleblowers may be subjected to.  In essence, however, they protect against the same things.  As mentioned above, the New Act sets out protections against retaliation (in the case of employers) and less favourable treatment (in the case of other persons).  An employee who is retaliated against has a personal grievance under the ERA.  In Australia, the private sector regime refers to detriment, while the public sector laws refer to reprisal.  Both are defined similarly (they include, among other things, dismissal and injury in employment); and both may be remedied by compensation, injunction, apology or (in the case of dismissal) reinstatement.  Unlike the New Act, the Australian laws do not distinguish between conduct committed by employers and conduct committed by other persons.  The UK legislation also protects against detriment and provides that firing an employee for making a protected disclosure will constitute unfair dismissal.

The New Act goes a considerable way in creating a clearer path for whistleblowers and, in turn, exposing and deterring corruption in organisations.

For more information on the New Act and its potential implications for your organisation, feel free to get in touch with a member of our team.

This article was co-authored by Dilshen Dahanayake, a solicitor in our Employment team.

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