What are the laws regarding whistleblowing and protected disclosures in NZ?



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Recent legislative changes and what may constitute serious wrongdoing in the workplace.
New Zealand Employment and HR
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This is the updated article of December 2023.

On 1 July 2022, parliament passed the Protected Disclosures (Protection of Whistleblowers) Act 2022. This Act aims to grant workers in New Zealand greater protection when vocalising their concerns about serious wrongdoing in the workplace. Both public and private sector organisations have responsibilities regarding whistleblowing under the new Act. Hence, this article will address the legislative changes and what may constitute serious wrongdoing in the workplace.

What is Whistleblowing and a Protected Disclosure?

A protected disclosure or whistleblowing is when someone reports serious wrongdoing or misconduct in the workplace. The discloser must reasonably believe that the wrongdoing they are disclosing is true.

Your workplace should have a policy for reporting serious wrongdoing or misconduct. If your workplace does not have these policies in place, any disclosures should be made to the head of an organisation or even an appropriate authority if necessary.

What Are the Laws Regarding Whistleblowing?

The new laws ensure that workers who make good faith disclosures regarding "serious wrongdoing" are protected. Serious wrongdoing generally includes any:

  • illegal activity and breaking the law; and
  • high-risk behaviours such as failure to comply with health and safety laws.

The disclosure of sensitive information is generally for the betterment of public health and safety. However, if false statements were made, those affected by the disclosed information may take disciplinary action.

The definition of "serious wrongdoing" or "serious misconduct" has been extended to include any serious risks to an individual's health and safety. This means it can now include harassment and bullying, previously not included in the legislation.

Who Can Workers Report To?

Workers can now report directly to the relevant authority, which differs from the previous "exceptional circumstance" requirement. The exceptional circumstance requirement restricted workers from reporting to relevant authorities unless there was an exceptional circumstance.

An appropriate authority can include, but is not limited to, the:

  • Ombudsman;
  • Commissioner of Police;
  • Director of the Serious Fraud Office;
  • Solicitor-General;
  • Health and Disability Commissioner; or
  • the head of relevant private sector professional bodies that can discipline their members, such as the Law Society.

How Are Disclosers Protected?

The Protection Disclosures Act now allows for further protections for the disclosures. This includes things such as:

  • prohibitions against employer retaliation;
  • heightened confidentiality regarding the identity of the discloser;
  • prohibitions against mistreatment or victimisation.

Furthermore, the law also gives the discloser protections from criminal, civil and disciplinary proceedings.

How Do Whistleblowing Laws Impact My Business?

If a disclosure is made to your business or organisation, you should acknowledge that the disclosure has been made. Once this has been done, you should consider whether an investigation is necessary and deal with it accordingly. Especially for organisations in the public sector, investigations must be exercised with caution due to public safety risks.

Within 20 working days, you should provide an outcome to the person who has made the disclosure. If you or your organisation choose not to take action, you should still inform the discloser of the decision and provide the reason for it.

How Can I Ensure My Workplace is Compliant?

You should ensure your business's whistleblowing policies are up to date to reflect the updates to the legislation. You must also consider whether the procedures around reporting disclosures are still appropriate.

To ensure that you have an effective procedure, a reporting hotline or contact email is critical to ensure that employees can make disclosures confidentially. Furthermore, to ensure all staff are aware of your business's whistleblowing policy changes, you should clearly outline these policies and communicate them during staff training or written communication.

Key Takeaways

Changes to whistleblowing laws have extended the definition of serious wrongdoing to include health and safety matters such as harassment and bullying. In addition, disclosures can now be made directly to a relevant authority without going through an organisation. However, effective methods of disclosure to the organisation must still be available. If a disclosure has been made to your organisation, ensure you deliver an outcome within 20 working days, even if any action is not taken.

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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