This Act is the Protected Disclosures Act 2000.

This Act comes into force on 1 January 2001.

(1) In this Act, unless the context otherwise requires,—

(2) An example used in this Act has the following status:

• (a) the example is only illustrative of the provision to which it relates and does not limit the provision; and

• (b) if the example and the provision to which it relates are inconsistent, the provision prevails.

This Act binds the Crown

The purpose of this Act is to promote the public interest—

• (a) by facilitating the disclosure and investigation of matters of serious wrongdoing in or by an organisation; and

• (b) by protecting employees who, in accordance with this Act, make disclosures of information about serious wrongdoing in or by an organisation.

(1) An employee of an organisation may disclose information in accordance with this Act if—

• (a) the information is about serious wrongdoing in or by that organisation; and

• (b) the employee believes on reasonable grounds that the information is true or likely to be true; and

• (c) the employee wishes to disclose the information so that the serious wrongdoing can be investigated; and

• (d) the employee wishes the disclosure to be protected.

(2) Any disclosure made in accordance with subsection (1) is a protected disclosure of information for the purposes of this Act.

(3) If an employee of an organisation believes on reasonable grounds that the information he or she discloses is about serious wrongdoing in or by that organisation but the belief is mistaken, the information must be treated as complying with subsection (1)(a) for the purposes of the protections conferred by this Act and by section 66(1)(a) of the Human Rights Act 1993.

(4) This section is subject to section 6A.

(1) A disclosure of information is not prevented from being a protected disclosure of information for the purposes of this Act merely because—

• (a) of a technical failure to comply with sections 7 to 10 if the employee has substantially complied with the requirement in section 6 to disclose the information in accordance with this Act; or

• (b) the employee does not expressly refer to the name of this Act when the disclosure is made.

(2) This section applies despite anything to the contrary expressed or implied in the relevant internal procedures.

(1) An Ombudsman may provide information and guidance to an employee on any matter concerning this Act (either on a request made at any time or at the Ombudsman’s discretion).

(2) If an employee notifies the Office of the Ombudsmen, orally or in writing, that he or she has disclosed, or is considering the disclosure of, information under this Act, an Ombudsman must provide information and guidance to that employee on the following matters:

• (a) the kinds of disclosures that are protected under this Act:

• (b) the manner in which, and the persons to whom, information may be disclosed under this Act:

• (c) the broad role of each authority referred to in paragraph (a)(i) to (x) of the definition of appropriate authority in section 3(1):

• (d) the protections and remedies available under this Act and the Human Rights Act 1993 if the disclosure of information in accordance with this Act leads to victimisation of the person making the disclosure:

• (e) how particular information disclosed to an appropriate authority may be referred to another appropriate authority under this Act.

(1) For the purpose of this Act, an Ombudsman may request 1 or more of the following from an organisation:

• (a) information concerning whether the organisation has established and published internal procedures for receiving and dealing with information about serious wrongdoing; and

• (b) a copy of those procedures; and

• (c) information about how those procedures operate.

(2) An organisation is not required to comply with a request made under subsection (1) if it is not a public sector organisation.

(1) An employee must disclose information in the manner provided by internal procedures established by and published in the organisation, or the relevant part of the organisation, for receiving and dealing with information about serious wrongdoing.

(2) This section is subject to sections 12 to 14.

(1) A disclosure of information may be made to the head or a deputy head of the organisation if—

• (a) the organisation has no internal procedures established and published for receiving and dealing with information about serious wrongdoing; or

• (b) the employee making the disclosure believes on reasonable grounds that the person to whom the wrongdoing should be reported in accordance with the internal procedures is or may be involved in the serious wrongdoing alleged in the disclosure; or

• (c) the employee making the disclosure believes on reasonable grounds that the person to whom the wrongdoing should be reported in accordance with the internal procedures is, by reason of any relationship or association with a person who is or may be involved in the serious wrongdoing alleged in the disclosure, not a person to whom it is appropriate to make the disclosure.

(2) This section is subject to sections 12 to 14.

(1) A disclosure of information may be made to an appropriate authority if the employee making the disclosure believes on reasonable grounds—

• (a) that the head of the organisation is or may be involved in the serious wrongdoing alleged in the disclosure; or

• (b) that immediate reference to an appropriate authority is justified by reason of the urgency of the matter to which the disclosure relates, or some other exceptional circumstances; or

• (c) that there has been no action or recommended action on the matter to which the disclosure relates within 20 working days after the date on which the disclosure was made.

(2) This section is subject to sections 12 to 14.

(1) A disclosure of information may be made to a Minister of the Crown or an Ombudsman if the employee making the disclosure—

• (a) has already made substantially the same disclosure in accordance with section 7 or section 8 or section 9; and

• (b) believes on reasonable grounds that the person or appropriate authority to whom the disclosure was made—

  • (i) has decided not to investigate the matter; or

  • (ii) has decided to investigate the matter but has not made progress with the investigation within a reasonable time after the date on which the disclosure was made to the person or appropriate authority; or

  • (iii) has investigated the matter but has not taken any action in respect of the matter nor recommended the taking of action in respect of the matter, as the case may require; and

• (c) continues to believe on reasonable grounds that the information disclosed is true or likely to be true.

(2) A disclosure under this section may be made to an Ombudsman only if—

• (a) it is in respect of a public sector organisation and it has not already been made to an Ombudsman under section 9; or

• (b) it is in respect of an organisation other than a public sector organisation and the disclosure is made for the purpose of allowing the Ombudsman to act under section 15 or 16.

(3) This section is subject to sections 12 to 14.

(1) Every public sector organisation must have in operation appropriate internal procedures for receiving and dealing with information about serious wrongdoing in or by that organisation.

(2) The internal procedures must—

• (a) comply with the principles of natural justice; and

• (b) identify the persons in the organisation to whom a disclosure may be made; and

• (c) include reference to the effect of sections 8 to 10.

(3) Information about the existence of the internal procedures, and adequate information on how to use the procedures, must be published widely in the organisation and must be republished at regular intervals.

The internal procedures of an intelligence and security agency must—

• (a) provide that the persons to whom a disclosure may be made must be persons holding an appropriate security clearance and be authorised to have access to the information; and

• (b) state that the only appropriate authority to whom information may be disclosed is the Inspector-General of Intelligence and Security; and

• (c) invite any employee who has disclosed, or is considering the disclosure of, information under this Act to seek information and guidance from the Inspector-General of Intelligence and Security, and not from an Ombudsman; and

• (d) state that no disclosure may be made to an Ombudsman, or to a Minister of the Crown other than—

  • (i) the Minister responsible for the relevant intelligence and security agency; or

  • (ii) the Prime Minister.

The internal procedures of—

• (a) the Department of the Prime Minister and Cabinet; and

• (b) the Ministry of Foreign Affairs and Trade; and

• (c) the Ministry of Defence; and

• (d) the New Zealand Defence Force—

must, insofar as they relate to the disclosure of information concerning the international relations of the Government of New Zealand or intelligence and security matters,—

• (e) provide that the persons to whom a disclosure may be made must be persons holding an appropriate security clearance and be authorised to have access to the information; and

• (f) state that the only appropriate authority to whom information may be disclosed is an Ombudsman; and

• (g) invite any employee who has disclosed, or is considering the disclosure of, information under this Act to seek information and guidance from an Ombudsman; and

• (h) state that no disclosure may be made to a Minister of the Crown other than,—

  • (i) in the case of a disclosure relating to the international relations of the Government of New Zealand, either the Prime Minister or the Minister responsible for foreign affairs and trade; or

  • (ii) in the case of a disclosure relating to intelligence and security matters, either the Prime Minister or the Minister responsible for an intelligence and security agency.

Neither the Inspector-General of Intelligence and Security nor an Ombudsman may disclose information referred to in section 12 or section 13 except in accordance with the provisions of the Inspector-General of Intelligence and Security Act 1996 or the Ombudsmen Act 1975, as the case may be.

(1) An Ombudsman may, with the consent of an employee who has made a protected disclosure of information to any organisation, appropriate authority, or other person in accordance with this Act,—

• (a) refer the disclosure to an appropriate authority or to another appropriate authority if the Ombudsman considers, after consultation with that appropriate authority, that any of the circumstances in section 9(1)(a) to (c) apply; or

• (b) refer the disclosure to a Minister of the Crown if the Ombudsman considers, after consultation with that Minister, that any of the circumstances in section 10(1)(b)(i) to (iii) apply; or

• (c) investigate the disclosure if the Ombudsman considers that—

  • (i) the disclosure relates to a public sector organisation; and

  • (ii) any of the circumstances in section 9(1)(a) to (c) or section 10(1)(b)(i) to (iii) apply.

(2) Subsection (1)—

• (a) applies despite sections 7 to 10:

• (b) does not authorise an Ombudsman to act if the protected disclosure of information is in respect of the Office of the Parliamentary Commissioner for the Environment.

(3) If an Ombudsman makes a referral under this section, he or she must promptly notify any organisation or other person that he or she is aware may be investigating the disclosure that the information disclosed has been referred under this section to an appropriate authority or Minister of the Crown for investigation.

(4) A protected disclosure of information does not, by reason of an Ombudsman acting under subsection (1), cease to be a protected disclosure of information.

(5) Nothing in this section prevents a protected disclosure of information being referred under—

• (a) this section on more than 1 occasion; or

• (b) section 16.

(6) This section is subject to sections 12 to 14.

(1) An Ombudsman may take over an investigation of a disclosure of information by a public sector organisation, or investigate a disclosure of information in conjunction with a public sector organisation, if—

• (a) the disclosure is in respect of the public sector organisation; and

• (b) the Ombudsman considers that any of the circumstances in section 10(1)(b)(i) to (iii) apply; and

• (c) the employee who made the disclosure consents to the Ombudsman acting under this section; and

• (d) in the case of an investigation in conjunction with a public sector organisation, the public sector organisation consents to the Ombudsman acting under this section.

(2) However, subsection (1) does not authorise an Ombudsman to act if the protected disclosure of information is in respect of the Office of the Parliamentary Commissioner for the Environment.

(3) This section is subject to sections 12 to 14.

(1) An Ombudsman may review and guide any investigation of a protected disclosure of information by a public sector organisation (either on the organisation’s request or at the Ombudsman’s discretion).

(2) Subsection (1) does not authorise an Ombudsman to issue a direction to a public sector organisation requiring it to act in a particular manner in relation to an investigation.

(3) Subsection (1) does not apply if the public sector organisation is the Office of the Parliamentary Commissioner for the Environment.

(4) This section is subject to sections 12 to 14.

(1) The Ombudsmen may receive reports on the following investigations:

• (a) investigations referred under section 15:

• (b) investigations in relation to which an Ombudsman has acted under section 15B:

• (c) investigations in relation to which an Ombudsman has otherwise provided information or guidance under this Act.

(2) The Ombudsmen may include (among other matters) in their annual report under section 29 of the Ombudsmen Act 1975 information concerning all or any of the following in respect of the period covered by the report:

• (a) current guidance issued by the Ombudsmen in respect of this Act:

• (b) the number and types of information and guidance inquiries made to the Ombudsmen in respect of this Act:

• (c) the number of protected disclosures of information made to the Ombudsmen:

• (d) the number of investigations of disclosures of information undertaken or taken over by the Ombudsmen:

• (e) the number of investigations referred under section 15:

• (f) the outcome of the matters referred to in paragraphs (b) to (e) (if known by the Ombudsmen).

The Chief Ombudsman may, by written notice, appoint a person to perform an Ombudsman’s functions under this Act.

(1) The functions and powers of Ombudsmen under the Ombudsmen Act 1975, including the function of each Ombudsman to make an investigation into a matter of his or her own motion under section 13(3) of that Act, are not limited by this Act.

(2) The Ombudsmen have the same powers in relation to investigating a disclosure of information made under this Act as Ombudsmen have in relation to a complaint under the Ombudsmen Act 1975, but are not bound to investigate the disclosure of information.

(3) Sections 19, 20, and 30 of the Ombudsmen Act 1975 apply, with all necessary modifications, for the purpose of allowing an Ombudsman to obtain information, documents, papers, or things that would in his or her opinion assist him or her to act under section 6C, 15B, or 15C in relation to a public sector organisation.

(1) Where an appropriate authority to whom a protected disclosure of information is made considers, after consultation with another appropriate authority, that the information disclosed can be more suitably and conveniently investigated by that other appropriate authority, the appropriate authority to whom the information is disclosed may refer that information to that other appropriate authority.

(2) Where, under subsection (1), information is referred from one appropriate authority to another, the appropriate authority to whom the information has been referred must promptly notify the person by whom the protected disclosure of information was made that the information disclosed has been so referred.

(3) A protected disclosure of information does not, by reason of the information being referred under subsection (1), cease to be a protected disclosure of information.

(4) Nothing in this section prevents a protected disclosure of information being transferred from one appropriate authority to another on more than 1 occasion.

(1) Where an employee who makes a protected disclosure of information under this Act claims to have suffered retaliatory action from his or her employer or former employer, that employee,—

• (a) if that retaliatory action consists of or includes dismissal, may have a personal grievance, for the purposes of paragraph (a) of section 103(1) of the Employment Relations Act 2000, because of a claim of unjustifiable dismissal, and Part 9 of that Act applies accordingly; and

• (b) if that retaliatory action consists of action other than dismissal or includes an action in addition to dismissal, may have a personal grievance, for the purposes of paragraph (b) of section 103(1) of the Employment Relations Act 2000, because of a claim described in that paragraph, and Part 9 of that Act applies accordingly.

(2) This section applies only to employees within the meaning of the Employment Relations Act 2000.

(1) No person who—

• (a) makes a protected disclosure of information; or

• (b) refers a protected disclosure of information to an appropriate authority for investigation—

is liable to any civil or criminal proceeding or to a disciplinary proceeding by reason of having made or referred that disclosure of information.

(2) Subsection (1) applies despite any prohibition of or restriction on the disclosure of information under any enactment, rule of law, contract, oath, or practice.

(1) Every person to whom a protected disclosure is made or referred must use his or her best endeavours not to disclose information that might identify the person who made the protected disclosure unless—

• (a) that person consents in writing to the disclosure of that information; or

• (b) the person who has acquired knowledge of the protected disclosure reasonably believes that disclosure of identifying information—

  • (i) is essential to the effective investigation of the allegations in the protected disclosure; or

  • (ii) is essential to prevent serious risk to public health or public safety or the environment; or

  • (iii) is essential having regard to the principles of natural justice.

(2) A request for information under the Official Information Act 1982 or under the Local Government Official Information and Meetings Act 1987 (other than one made by a constable for the purpose of investigating an offence) may be refused, as contrary to this Act, if it might identify a person who has made a protected disclosure.

(3) An Ombudsman may—

• (a) provide information and guidance to organisations and employees concerning the circumstances in which anonymous disclosures of information may be made under this Act; and

• (b) otherwise provide advice and assistance to organisations and other persons in relation to the duty specified in subsection (1).

(1) The protections conferred by sections 17 to 19 apply, with all necessary modifications, to a person who volunteers supporting information as if the information were a protected disclosure of information.

(2) In this section, a person volunteers supporting information if the person—

• (a) provides information, in support of a protected disclosure of information made by another person, to—

  • (i) a person investigating the disclosure; or

  • (ii) the person who made the disclosure; and

• (b) is an employee of the organisation in respect of which the disclosure was made; and

• (c) wishes to provide the supporting information so that the serious wrongdoing can be investigated.

(3) However, a person does not volunteer supporting information if the person provides the supporting information only after being—

• (a) required to do so under any enactment, rule of law, or contract for the purposes of the investigation; or

• (b) approached during the course of the investigation by, or on behalf of, the person investigating the matter.

The protections conferred by this Act and by section 66(1)(a) of the Human Rights Act 1993 do not apply where the person who makes a disclosure of information makes an allegation known to that person to be false or otherwise acts in bad faith.

This Act does not limit any protection, privilege, immunity, or defence, whether statutory or otherwise, relating to the disclosure of information.

(1) Nothing in this Act authorises a person to disclose information protected by legal professional privilege.

(2) A disclosure of such information is not a protected disclosure for the purposes of this Act.

(1) This Act has effect despite any provision to the contrary in any agreement or contract.

(2) Any provision in any agreement or contract that purports to require an employee to withdraw or abandon a disclosure of information made under this Act is of no effect.

Amendment(s) incorporated in the Act(s).