Protected Disclosures (Protection of Whistleblowers) Bill

Protected Disclosures (Protection of Whistleblowers) Bill

Government Bill

294—1

Explanatory note

General policy statement

This Bill replaces the Protected Disclosures Act 2000 (the Act). The Bill continues the purpose of the Act, which is to promote the public interest by facilitating the disclosure and investigation of serious wrongdoing in the workplace, and by providing protection for employees and other workers who report concerns. All workplaces are covered, although some provisions apply specifically to public sector organisations and to public funds and functions.

The Bill is informed by reviews and by extensive consultation, including public consultation conducted in late 2018. Public consultation highlighted that while the aims of the Act remain sound, there are 4 broad problems that guidance and standards (such as State Services Commission’s Speaking up standards) cannot fully address without changes to the Act. These problems are—

  • both organisations and disclosers are confused about when to use the Act:

  • disclosers are unclear about how to make a disclosure internally, and some organisations are also unclear about how to respond:

  • it is hard for disclosers to navigate the system for reporting concerns externally:

  • disclosers fear speaking up because they lack confidence in the protections available to them.

In order to address these problems, the Bill—

  • clarifies the definition of serious wrongdoing and extends its application to cover private sector use of public funds and authority:

  • enables people to report serious wrongdoing directly to an appropriate authority at any time, provides more clarity about appropriate authorities, and clarifies the ability of those authorities to decline or refer the disclosure:

  • strengthens protections for disclosers by specifying what a receiver of a disclosure should do:

  • clarifies the internal procedure requirements for public sector organisations and requires them to state how they will provide support in the form of practical assistance and advice to disclosers:

  • clarifies the potential forms of adverse conduct disclosers may face.

In addition, the Bill puts the current provisions of the Act into a more accessible form and changes terminology where required to make the scope and intent clearer.

Clarifying definition of serious wrongdoing

The Bill extends the definition of serious wrongdoing to ensure that unlawful, corrupt, or irregular use of public funds or resources is in scope whether it occurs in a public or private organisation and to cover non-government organisations delivering services or exercising authority on behalf of the Government.

Enabling disclosers to make a disclosure directly to an appropriate authority at any time

The Bill enables disclosers to make a disclosure directly to an appropriate authority at any time. The Bill adds a new schedule containing examples of the most likely appropriate authorities and examples of the nature of concerns they deal with.

Strengthening protections for disclosers

The Bill strengthens protections for disclosers by clarifying key steps receivers of disclosures should take on receiving a disclosure. This applies to public and private organisations and to appropriate authorities.

Clarifying receivers’ options and obligations

The Bill clarifies that receivers of disclosures may refer the disclosure back to the employing organisation or decide that no action is required. This addresses concerns that recipients may have to deal with disclosures that do not meet the tests in the Act. The Bill clearly sets out what receivers should do.

Clarifying internal procedure requirements for public sector organisations

The Bill requires public sector organisations’ internal procedures to describe what is required of those receiving a disclosure and state how practical assistance and advice for disclosers will be provided.

Clarifying the potential forms of retaliation or less favourable treatment disclosers might face

The Bill provides further protections to those making a disclosure by explicitly identifying the forms of retaliation or less favourable treatment that disclosers might face. The Bill makes it clear that things other than dismissal can also be a basis for a personal grievance or Human Rights Commission complaint.

Departmental disclosure statement

The State Services Commission is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The State Services Commission produced a regulatory impact assessment on 7 October 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

This Bill re-enacts the Protected Disclosures Act 2000 (the Act), with some changes of policy. The intention is to create an accessible Act that is fit for purpose and easy for non-lawyers to use. Several provisions are revised with no change of legal effect. Their revision is analogous with revision Bills under the Legislation Act 2012. Revision Bills re-enact an older Act in an up-to-date and accessible form.

The following table indicates which clauses of the Bill contain new policy, which clauses include clarifying amendments, and which clauses include revisions with no change of legal effect.

New policy
Clause 10extended application of the definition of serious wrongdoing
Clause 11(3)a discloser may disclose to an appropriate authority at any time
Clause 15(3)a receiver who wishes to refer a disclosure must consult the discloser
Clause 15(5)if an appropriate authority has referred a disclosure to the organisation concerned, the organisation must report back to the authority
Clause 27(2)(c)(vi)public sector organisations must provide practical assistance and advice for disclosers
Minor amendments to clarify Parliament’s intent or reconcile inconsistencies
Clause 4 clarifying definitions
Clause 9 clarifying the test for protected disclosures
Clause 11(4)entitling a discloser to protection for confidentially seeking advice about whether or how to make a protected disclosure
Clauses 11 and 13clarifying disclosers’ entitlements to protection
Clause 12setting out what receivers should do within 20 working days of receiving a disclosure
Clauses 14 and 15clarifying receivers’ options
Clause 15(1)clarifying that the organisation itself may refer the disclosure to an appropriate authority
Clause 16(3)requiring a receiver who believes it is essential to release a discloser’s identifying information to consult the discloser (in some circumstances only if practicable)
Clause 19(4) clarifying the potential forms of retaliation that are prohibited
Clause 20 including in this Bill (for accessibility) the ban in current section 66 of the Human Rights Act 1993 on less favourable treatment of disclosers
Clause 23 clarifying who is an appropriate authority
Clause 27 clarifying requirements about the internal procedures of public sector organisations
Revisions with no change of legal effect
Clause 3 (current section 5)
Clause 6 (current section 4)
Clause 8(current section 3, definition of employee)
Clause 16 (current section 19(1) and (3))
Clause 17 (current section 19(2))
Clause 21 (current section 18)
Clause 22 (current section 6A(2) and 23)
Clause 25 (current sections 12 and 14)
Clause 26 (current sections 13 and 14)
Clause 27(current section 11)
Clause 28(current sections 6B and 19(3))
Clause 29 (current section 6C)
Clause 30 (current section 15)
Clause 31 (current section 15A)
Clause 32 (current section 15B)
Clause 33 (current section 15C)
Clause 34 (current section 15D)
Clause 35 (current section 15E)
Clause 36 (current section 21)
Clause 37 (current section 22)

Clause 1 is the Title clause.

Clause 2 provides that the Bill will come into force on 1 July 2021.

Part 1Preliminary provisions

Clause 3 provides that the purpose of the Bill is to promote the public interest by facilitating the disclosure and timely investigation of serious wrongdoing and by protecting those who disclose it.

Clause 4 sets out the definitions of terms used in the Bill. Key terms include: appropriate authority (defined in clause 23); discloser (defined in clause 8); protected disclosure (defined in clause 9); and serious wrongdoing (defined in clause 10).

Clause 5 provides that Schedule 1 sets out transitional, savings, and related provisions. Schedule 1 provides that the Bill applies to a protected disclosure made after the Bill’s commencement (whether the alleged serious wrongdoing occurs before or after then).

Clause 6 provides that the Bill will bind the Crown.

Part 2Key concepts and what to do

Subpart 1—Key concepts

Clause 7 is an overview provision. It includes a flowchart giving an overview of how the Bill will apply to a discloser. It also gives an overview of the protections under the Bill that a discloser is entitled to.

Clause 8 defines discloser. The term covers people who work (or who have worked) for an organisation. It includes current or former employees, contractors, managers, board members, and volunteers. Contractors could include, for example, people whose work is actually directed by someone other than their employer.

Clause 9 defines protected disclosure. Disclosure of information is a protected disclosure if the discloser reasonably believes that there is, or has been, serious wrongdoing in or by the discloser’s organisation. The other requirements are that the discloser discloses information about that in accordance with the Bill, and does not disclose in bad faith.

Clause 10 defines serious wrongdoing. This definition continues the Act’s definition with 2 changes. The current definition speaks of unlawful, corrupt, or irregular use of a public sector organisation’s funds or resources. The first change is to widen the definition to cover unlawful, corrupt, or irregular use of public funds or public resources. This has the effect of including private sector bodies using public funds or resources. The second change is to catch oppressive, improperly discriminatory, or grossly negligent conduct or gross mismanagement by those performing a statutory function or duty or exercising a statutory power or acting on behalf of a public sector organisation. Currently, that sort of behaviour is caught only if it is by public officials. This change has the effect of including private sector bodies who are fulfilling public functions, duties, or powers.

Subpart 2—What to do (disclosers and receivers)

Clause 11 is the key clause setting out when a discloser is entitled to protection. The clause has the effect of indicating what a discloser should do to disclose serious wrongdoing.

Protection is available if the discloser makes a protected disclosure to their organisation in accordance with internal procedures or, if there are none or if they are not appropriate in the circumstances, to the head or deputy head of the organisation. Protection is also available for a protected disclosure made to an appropriate authority at any time.

Protection is available even if the discloser is mistaken and there is no serious wrongdoing. It is available if they do not refer to the name of the Bill when making the disclosure. And protection is available if a discloser technically fails to comply with the Bill’s requirements.

A minor policy clarification entitles the discloser to protection for disclosing to another person if that is on a confidential basis and for the purpose of seeking advice about whether or how to make a protected disclosure. This has the effect of enabling a person to disclose without repercussions to, for example, a lawyer or other adviser or to a spouse or other confidant.

Clause 12 sets out what the receiver of a protected disclosure should do. What a receiver should do is only implicit in the Act.

Clause 13 sets out the discloser’s entitlement to disclose to a Minister or an Ombudsman if the discloser believes on reasonable grounds that a receiver has not acted as it should under clause 12 or addressed the serious wrongdoing. Disclosing to a Minister or an Ombudsman under clause 13 entitles the discloser to protection under this Bill for the disclosure.

Clauses 14 and 15 set out the receiver’s options. The receiver may decide that no action is required or may refer the matter to an appropriate authority.

Part 3Protections

Clause 16(1) re-enacts section 19(1) of the Act, which requires receivers of protected disclosures to use their best endeavours to keep confidential information that might identify the discloser. Clause 16(2) sets out the exceptions to that duty.

Clause 17 re-enacts section 19(2) of the Act, which enables a receiver to refuse an official information request if it might identify a discloser. Clause 17 reflects section 18 of the Official Information Act 1982 and section 17 of the Local Government Official Information and Meetings Act 1987. Those provisions enable a request to be refused if making available information would be contrary to a specified enactment. Section 52 of the Official Information Act 1982 and section 44 of the Local Government Official Information and Meetings Act 1987 provide that nothing in those Acts derogates from another Act prohibiting or restricting the making available of information. Those provisions have the effect that a request under those Acts may be refused.

Clause 18 summarises clauses 19 and 20, which provide—

  • an employer must not retaliate against an employee discloser (clause 19); and

  • a person must not to treat another less favourably because of a protected disclosure (clause 20).

Clause 19 provides that if an employer retaliates or threatens to retaliate against an employee in breach of the obligation not to do so, the employee has a personal grievance under the Employment Relations Act 2000. This re-enacts section 17 of the Act.

Clause 20 re-enacts section 66 of the Human Rights Act 1993. Clause 20 provides that it is unlawful to treat another person less favourably because that person (or their relative or associate) intends to make, or has made (or has given evidence about) a protected disclosure. Clause 20 continues, as a form of discrimination under New Zealand law, treating a discloser less favourably. Treating a person less favourably can be the subject of a dispute resolution process under Part 3 of that Act or a proceeding in the Human Rights Review Tribunal or a court under Part 4 of that Act.

Examples of A treating B less favourably are—

  • if A is B’s employer, A retaliating against B (that is, retaliating within the meaning given in clause 19):

  • A terminating a contract for services by B, or requiring or causing B to terminate a contract for services (where A would not do so to others):

  • A refusing or omitting to employ or engage B on work of any description that is available and for which B is qualified (where A would employ or engage others):

  • A refusing or omitting to offer or afford B the same terms of engagement, conditions of work, fringe benefits, or opportunities as are made available to other people of the same or substantially similar qualifications, experience, or skills who are engaged in the same or substantially similar circumstances:

  • A subjecting B to any detriment, in circumstances in which A would not subject others to such detriment:

  • A refusing or failing to enter into an arrangement (whether commercial or otherwise) with B in circumstances in which A would enter into an arrangement with others:

  • A refusing B entry to a club, political party, association, union, or church (or similar) in circumstances in which A would allow others to enter.

Clause 21 re-enacts the immunity from civil, criminal, and disciplinary proceedings in section 18 of the Act. The immunity is given to both disclosers who make protected disclosures and receivers who refer disclosures.

Clause 22 re-enacts sections 6A(2) and 23 of the Act. Clause 22 provides that there can be no contracting out of the Bill.

Part 4Appropriate authorities, special rules for certain organisations, the Ombudsmen’s role, etc

Subpart 1—Appropriate authorities

Clause 23 defines appropriate authority. Examples of appropriate authorities and examples of the nature of concerns they deal with are provided in Schedule 2.

Clause 24 provides that the examples in Schedule 2 may be amended by Order in Council. However, the responsible Minister must not recommend an Order in Council unless the Minister has consulted the relevant appropriate authority.

Subpart 2—Special rules for intelligence, security, and international relations information

Clause 25 re-enacts sections 12 and 14 of the Act. Clause 25 provides for special rules for disclosures of intelligence and security information.

Clause 26 re-enacts the special rules in sections 13 and 14 of the Act for disclosures of international relations information.

Subpart 3—Special rules for all public sector organisations

Clause 27 sets out requirements for the internal procedures of public sector organisations. (Internal procedures is defined in clause 4 as any procedures adopted by, and published within, an organisation about how the organisation receives and deals with information about serious wrongdoing in or by that organisation.)

The requirements are the same as in section 11 of the Act. However, there is an additional requirement added in clause 27(2)(c)(vi) that a public sector organisation include a description in its internal procedures about how it will provide practical assistance and advice to disclosers. The nature of this assistance and advice is to be determined by each organisation. However, guidance is provided by the State Services Commission’s Speaking up standards. These are model standards outlining expectations on public sector organisations to support the effective reporting and managing of wrongdoing. The requirements about support given in the model standards include the ability to access dedicated and tailored support in addition to Employee Assistance Programmes, local welfare or support services, unions, and service organisations.

Clause 27(3) requires public sector organisations to publish widely (and republish at regular intervals) both information about the existence of the procedures and adequate information about how to use them. This re-enacts current section 11(3) of the Act.

Subpart 4—Ombudsmen’s role

Clauses 28 to 35 re-enact the Act’s provisions about the role of the Ombudsmen.

Subpart 5—Other protections and privileges

Clause 36 provides that the Bill does not limit any statutory or other protection, privilege, immunity, or defence relating to the disclosure of information. This has the effect of allowing those things to continue to operate as they would do without the enactment of the Bill. Clause 36 re-enacts section 21 of the Act.

Clause 37 provides that nothing in the Bill authorises a person to disclose information protected by legal professional privilege. A disclosure of information protected by such a privilege is not a protected disclosure. This re-enacts section 22 of the Act.

Subpart 6—Consequential amendments and repeal

Clause 38 provides for consequential amendments made in Schedule 3. Schedule 3 amends—

  • the Employment Relations Act 2000 to address the effect of the personal grievance changes made in clause 19:

  • the Human Rights Act 1993 to re-enact current section 66 of that Act, but only in respect of treating another person less favourably for using their rights under that Act. Current section 66 also includes the requirement not to treat someone less favourably in relation to a protected disclosure, but this has been re-enacted as clause 20:

  • the Intelligence and Security Act 2017 to amend section 171 of that Act to clarify that the ability to complain under that section is in addition to the ability to make a protected disclosure:

  • the Ombudsmen Act 1975 to update references to the current Act to references to the Bill.

Clause 39 repeals the Act.

Comparative table

The following table sets out the provisions of the Act and the corresponding provisions of this Bill. The table is only to assist readers. It is not a definitive or ongoing guide to how the provisions correspond.

Provisions of ActProvisions of Bill
Section 1Clause 1
Section 2Clause 2
Section 3Clause 4
Section 4Clause 6
Section 5Clause 3
Section 6Clause 9(a) and (b)
Section 6AClause 11(4)(b) and (c)
Section 6BClause 28
Section 6CClause 29
Section 7Clause 11(2)
Section 8Clause 11(2)
Section 9Clauses 11 and 12
Section 10Clause 13
Section 11Clause 27
Section 12Clause 25
Section 13Clause 26
Section 14Clauses 25 and 26
Section 15Clause 30
Section 15AClause 31
Section 15BClause 32
Section 15CClause 33
Section 15DClause 34
Section 15EClause 35
Section 16Clause 15
Section 17Clause 19
Section 18Clause 21
Section 19Clauses 16 and 28
Section 19AClause 11(5)
Section 20Clause 9(c)
Section 21Clause 36
Section 22Clause 37
Section 23Clause 22
Section 25Clause 20