Worldwide: Whistleblowing Update

Last Updated: 11 September 2019
Article by Laura Scampion and Alicia Murray

There has been a lot of commentary recently about whistleblowers and the proposed amendments to the Protected Disclosures Act 2000, which are aimed at strengthening the protection available to whistleblowers in New Zealand.

In June we presented a seminar on whistleblowing policies in conjunction with some of our Australian colleagues, discussing the NZ legislation, proposed changes, and the new legislation effective in Australia from 1 July 2019.

Since we presented that seminar, there are some updates worth mentioning relating to whistleblowing policies. In summary, there is a consistent message about the benefit of clear and understandable whistleblowing policies for both organisations and their employees.

New Zealand Updates

  • The Chief Ombudsman published a guide to the Protected Disclosures Act, which provides detailed guidance on what internal policies should include, communication of the policy and training of staff. The guide emphasises the need for a clear organisational commitment to supporting the disclosure of wrong-doing by staff, making sure the policy is clear and easy to understand and ensuring an organisation properly handles disclosures. There is also a useful checklist for organisations at the end of the guide. The guide can be found here.
  • The Chief Ombudsman has publicly released the submission he made to the State Services Commission on the proposed changes to the Protected Disclosures Act. The Chief Ombudsman agrees that reform is necessary, and his submission contains a number of recommendations, including:
  • That bullying and harassment be included in the definition of serious wrong-doing, perhaps under a separate category, as there is no clear and safe pathway for employees to raise systemic issues of bullying and harassment.
  • That the legislation set minimum requirements for the content of internal procedures for receiving and dealing with protected disclosures.
  • Wider powers for the Ombudsman to request information from public sector organisations, and broader reporting obligations on public sector organisations.
    The submission can be found here.
  • A report from the Victoria University School of Government called for the establishment of a new whistleblower protection authority to handle and assess complaints ranging from bullying to fraud, which would cover both public and private sectors. It also emphasised clarity and consistency, so people know exactly what their protections are.
  • We are still seeing a number of organisations in New Zealand relying on global whistleblowing policies that are difficult to implement (from an organisation perspective) and even more difficult understand (from an employee perspective). In some organisations there is still a real disconnect between the written policy and employees/former employees understanding of how to report wrongdoing and how their report will be dealt with.

Australian Updates

ASIC has published its consultation paper on the requirements of whistleblower policies for public companies, and consultation is open until 18 September 2019. Our Australian office has published a link to ASIC consultation paper and draft regulatory guide, which can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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