Protected Disclosures (Protection of Whistleblowers) Bill
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Protected Disclosures (Protection of Whistleblowers) Bill
Government Bill
294—3
As reported from the committee of the whole House
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Hon Chris Hipkins
Protected Disclosures (Protection of Whistleblowers) Bill
Government Bill
294—3
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Protected Disclosures (Protection of Whistleblowers) Act 2021.
2 Commencement
This Act comes into force on 1 July 20212022.
Part 1 Preliminary provisions
3 Purpose
The purpose of this Act is to promote the public interest—
(a)
by facilitating the disclosure and timely investigation of serious wrongdoing in or by an organisation; and
(b)
by protecting the people who disclose in accordance with this Act.
Compare: 2000 No 7 s 5
4 Interpretation
In this Act, unless the context otherwise requires,—
appropriate authority has the meaning given in section 23
classified information has the meaning given to it by in section 78AA of the Crimes Act 1961
discloser has the meaning given in section 8
environment has the meaning given to it by in section 2 of the Environment Act 1986
intelligence and security agency has the meaning given to it byin section 4 of the Intelligence and Security Act 2017
intelligence and security information means information that—
(a)
is classified information; or
(b)
relates to the activities of an intelligence and security agency
internal procedures means 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
international relations agency means—
(a)
the Department of the Prime Minister and Cabinet:
(b)
the Ministry of Foreign Affairs and Trade:
(c)
the Ministry of Defence:
(d)
the New Zealand Defence Force
international relations information means information that—
(a)
is about the international relations of the Government of New Zealand; and
(b)
is held by an international relations agency; and
(c)
is not classified information; and
(d)
does not relate to the activities of an intelligence and security agency
officer of Parliament means an Ombudsman, the Parliamentary Commissioner for the Environment, or the Controller and Auditor-General
Ombudsman means an Ombudsman holding office under the Ombudsmen Act 1975, and includes for the purposes of this Act (except section 26)—
(a)
any person holding office under an Ombudsman to whom any of the powers of an Ombudsman have been delegated under section 28 of that Act; and
(b)
any person whom the Chief Ombudsman has appointed to perform an Ombudsman’s functions under this Act
organisation means a body of persons (including a body comprising 1 employer and 1 or more employees), whether—
(a)
corporate or unincorporate:
(b)
in the public sector or in the private sector
protected disclosure has the meaning given in section 9
public sector organisation means—
(a)
an organisation named or specified in Schedule 1 of the Ombudsmen Act 1975:
(b)
an organisation (except for an officer of Parliament) named in Schedule 1 of the Official Information Act 1982:
(c)
a local authority or public body named or specified in Schedule 1 of the Local Government Official Information and Meetings Act 1987:
(d)
the Office of the Clerk of the House of Representatives:
(e)
the Parliamentary Service:
(f)
an intelligence and security agency:
(g)
a council-controlled organisation within the meaning of section 6 of the Local Government Act 2002
receiver means the receiver of a protected disclosure who is either—
(a)
the organisation concerned; or
(b)
an appropriate authority
retaliate has the meaning given in section 19
serious wrongdoing has the meaning given in section 10.
Compare: 2000 No 7 s 3
5 Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
6 Act binds the Crown
This Act binds the Crown.
Compare: 2000 No 7 s 4
Part 2 Key concepts and what to do
Subpart 1—Key concepts
7 Overview
(1)
The following flowchart gives an overview of how this Act applies to a discloser:
Protections under this Act
(2)
A discloser is entitled to protection under this Act for a protected disclosure as follows:
(a)
the receiver must use their best endeavours to keep the discloser’s identity confidential (with certain exceptions, see section 16); and
(b)
the disclosure should be considered and dealt with in a timely way (see section 12); and
(c)
there can be no retaliation against the discloser’s employment (see section 19); and
(d)
the discloser (and their relatives and associates) cannot be treated less favourably (see section 20); and
(e)
the discloser has an immunity for the disclosure in court or disciplinary proceedings (see section 21); and
(f)
the organisation cannot contract out of this Act or have internal procedures that are inconsistent with this Act (see section 22); and
(g)
a public sector organisation must provide practical assistance and advice to the discloser in relation to serious wrongdoing in or by that organisation (see section 27).
(2A)
The disclosure should be considered and dealt with in a timely way (see section 12).
(2B)
A person who discloses information in support of, or relating to, a protected disclosure is also entitled to protection under this Act (see section 11A).
(3)
This section is only a guide to the general scheme and effect of this Act.
8 Meaning of discloser
In this Act, discloser, in relation to an organisation, means an individual who is (or was formerly)—
(a)
an employee:
(b)
a homeworker within the meaning given in section 5 of the Employment Relations Act 2000:
(c)
a secondee to the organisation:
(d)
engaged or contracted under a contract for services to do work for the organisation:
(e)
concerned in the management of the organisation (including, for example, a person who is or was a member of the board or governing body of the organisation):
(f)
a member of the Armed Forces (in relation to the New Zealand Defence Force):
(g)
a volunteer working for the organisation without reward or expectation of reward for that work.
Compare: 2000 No 7 s 3(1)
9 Meaning of protected disclosure
A disclosure of information is a protected disclosure if the discloser—
(a)
believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the discloser’s organisation; and
(b)
discloses information about that in accordance with this Act; and
(c)
does not disclose it in bad faith.
Compare: 2000 No 7 ss 6, 20
10 Meaning of serious wrongdoing
In this Act, serious wrongdoing includes any act, omission, or course of conduct in (or by) any organisation that is 1 or more of the following:
(a)
an offence:
(b)
a serious risk to—
(i)
public health; or
(ii)
public safety; or
(iia)
the health or safety of any individual; or
(iii)
the environment:
(c)
a serious risk to the maintenance of law, including—
(i)
the prevention, investigation, and detection of offences; or
(ii)
the right to a fair trial:
(d)
an unlawful, a corrupt, or an irregular use of public funds or public resources:
(e)
oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement, and is done (or is an omission) by—
(i)
an employee (if the organisation is a public sector organisation):
(ii)
a person performing (or purporting to perform) a statutory function or statutory duty or exercising (or purporting to exercise) a statutory power:
(iii)
a person performing (or purporting to perform) a function or duty or exercising (or purporting to exercise) a power on behalf of a public sector organisation or the Government.
Compare: 2000 No 7 s 3(1)
Subpart 2—What to do (disclosers and receivers)
11 Discloser’s entitlement to protection
(1)
A discloser is entitled to protection under this Act for a protected disclosure made (in accordance with this section) to their organisation or to an appropriate authority.
(2)
A discloser is entitled to protection for a protected disclosure made to their organisation if it is made—
(a)
in accordance with any internal procedures; or
(b)
to the head or a deputy head of the organisation.
(3)
A discloser is entitled to protection for a protected disclosure made to an appropriate authority at any time. (This applies whether or not the discloser has also made the disclosure to their organisation or to another appropriate authority.)
(4)
A discloser is entitled to protection even if—
(a)
they are mistaken and there is no serious wrongdoing; or
(b)
they do not refer to the name of this Act when making the disclosure; or
(c)
they technically fail to comply with this section or section 13 (as long as they have substantially complied); or
(d)
they also make the disclosure to another person, as long as they do so—
(i)
on a confidential basis; and
(ii)
for the purposes of seeking advice about whether or how to make a protected disclosure in accordance with this Act.
(5)
Another discloser who discloses further information in accordance with this Act in support of a disclosure is also entitled to protection (unless they were required to do so under any enactment, rule of law, or contract for the purposes of investigating the disclosure).
(6)
If the disclosure is or includes intelligence and security information or international relations information, this section is subject to sections 23(2), 25 and 26.
Compare: 2000 No 7 ss 6(3), 6A, 7, 8, 9, 19A
11A Supporting information
(1)
Another discloser who discloses information in support of, or relating to, a protected disclosure is also entitled to protection under this Act if the discloser—
(a)
does not disclose in bad faith; and
(b)
discloses to their organisation, or to an appropriate authority, in accordance with section 11.
(2)
The protections under this Act apply, with all necessary modifications, to that discloser as if the information were a protected disclosure.
Compare: 2000 No 7 s 19A
12 Guidance: what receiver should do
(1)
Within 20 working days of receiving a protected disclosure, the receiver of the disclosure should—
Acknowledge receipt
(a)
acknowledge to the discloser the date the disclosure was received (and, if the disclosure was made orally, summarise the receiver’s understanding of the disclosure); and
Consider
(b)
consider the disclosure and whether it warrants investigation; and
Check
(c)
check with the discloser whether the disclosure has been made elsewhere (and any outcome); and
Deal with
(d)
deal with the matter by doing 1 or more of the following:
(i)
investigating the disclosure:
(ii)
addressing any serious wrongdoing by acting or recommending action:
(iii)
referring the disclosure under section 15:
(iv)
deciding that no action is required (under section 14); and
Inform discloser (with reasons)
(e)
inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter in accordance with paragraph (d).
(2)
However, when it is impracticable to complete these actions within 20 working days, the receiver should do the actions described in subsection (1)(a) to (c) within 20 working days and then should—
Inform discloser
(a)
inform the discloser how long the receiver expects to take to deal with the matter; and
Update
(b)
appropriately update the discloser about progress; and
Deal with
(c)
deal with the matter as described in subsection (1)(d); and
Inform discloser (with reasons)
(d)
inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter in accordance with subsection (1)(d).
(3)
This section is guidance only. It does not confer a legal right (apart from the entitlements under sections 13,and 30, and 31) or impose a legal obligation on any person that is enforceable in a court of law.
Compare: 2000 No 7 s 9
13 Discloser’s entitlement to disclose further
(1)
This section applies if a discloser believes on reasonable grounds that the receiver of a protected disclosure—
(a)
has not acted as it should under section 12; or
(b)
has not dealt with the matter so as to address the serious wrongdoing.
(2)
The discloser is entitled to protection under this Act for a protected disclosure made to—
(a)
a Minister (unless the disclosure relates to serious wrongdoing in or by the office of an officer of Parliament); or
(aa)
the Speaker (if the disclosure relates to serious wrongdoing in or by the office of an officer of Parliament).
(2)
The discloser is entitled to protection under this Act for a protected disclosure made to a Minister.
(2AAA)
However, the discloser is entitled to protection under this Act for a protected disclosure made to the Speaker (not a Minister) if the disclosure relates to serious wrongdoing in or by any of the following:
(a)
the office of an officer of Parliament:
(b)
the Office of the Clerk of the House of Representatives:
(c)
the Parliamentary Service.
(2A)
This section does not limit—
(a)
section 11(3), which provides a discloser may disclose to an Ombudsman as an appropriate authority (including an Ombudsman) at any time; and
(b)
section 30, which enables an Ombudsman to refer or investigate certain protected disclosures.
(3)
However, if the disclosure is or includes intelligence and security information or international relations information, this section is subject to sections 25 and 26.
Compare: 2000 No 7 s 10
14 Receiver may decide no action is required
(1)
A receiver of a protected disclosure may decide that no action is required and, if so, must inform the discloser (with reasons).
(2)
Reasons that may be appropriate for deciding that no action is required include that—
(a)
the requirements of sections 8 to 10 are not met:
(b)
the length of time between the alleged serious wrongdoing and the disclosure makes an investigation impracticable or undesirable:
(c)
the matter is better addressed by other means.
15 Receiver may refer disclosure
(1)
A receiver that is the organisation concerned may refer the a protected disclosure to an appropriate authority.
(2)
A receiver that is an appropriate authority may refer the a protected disclosure to—
(a)
the organisation concerned; or
(b)
another appropriate authority.
(3)
Before referring a protected disclosure, the receiver must consult the discloser and the intended recipient of a referral.
(4)
The organisation or authority that has received a referral becomes the receiver of the disclosure and this Act applies accordingly.
(5)
If an appropriate authority refers a disclosure to the organisation concerned, the organisation must inform the authority about what the organisation has done or is doing to deal with the matter (at the same time as the organisation informs the discloser of that (seeunder section 12(1)(e) or (2)(d))).
(6)
A disclosure may be referred on more than 1 occasion.
(7)
The Inspector-General of Intelligence and Security may refer a disclosure under this section in a way that is consistent with section 25(1).
Compare: 2000 No 7 s 16
Part 3 Protections
Confidentiality
16 Confidentiality
(1)
Every receiver of a protected disclosure must use their best endeavours to keep confidential information that might identify the discloser.
(2)
However, a receiver need not keep a discloser’s identity confidential if—
(a)
the discloser consents to the release of the identifying information; or
(c)
there are reasonable grounds to believe that the release of the identifying information is essential—
(i)
for the effective investigation of the disclosure; or
(ii)
to prevent a serious risk to public health or, public safety, the health or safety of any individual, or the environment; or
(iii)
to comply with the principles of natural justice.; or
(iv)
to an investigation by a law enforcement or regulatory agency for the purpose of law enforcement.
(3)
Before releasing identifying information for a reason described in subsection (2)(c),—
(a)
if the release is for the reason described in subsection (2)(c)(i) or (iii), the receiver must consult the discloser about the release; or
(b)
if the release is for the reason described in subsection (2)(c)(ii) or (iv), the receiver must, if practicable, consult the discloser about the release.
(3A)
After releasing identifying information for a reason described in subsection (2)(c), the receiver must inform the discloser.
(4)
Anyone may seek information and guidance from an Ombudsman about the duty of confidentiality in this section.
(4A)
In this section, law enforcement or regulatory agency includes bodies within the meaning of law enforcement agency given in section 3(1) of the Search and Surveillance Act 2012.
(5)
See section 25 for special rules relating to intelligence and security information.
Compare: 2000 No 7 s 19(1), (3)
16A Protecting confidentiality under Privacy Act 2020
(1)
The release of information that might identify the discloser is an interference with the privacy of an individual for the purposes of Part 5 of the Privacy Act 2020 if the release breaches section 16 of this Act.—
(a)
the release breaches section 16 of this Act; and
(b)
the release has—
(i)
caused, or may cause, loss, detriment, damage, or injury to the discloser; or
(ii)
adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of the discloser; or
(iii)
resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of the discloser.
(2)
Part 5 of the Privacy Act 2020 applies (with all necessary modifications) to a release described in subsection (1) as follows:
(a)
a discloser may make a complaint complain under section 70 of that Act, and Part 5 of that Act applies to that their complaint (and the duties and powers of the Commissioner, Director, and Tribunal under that Act apply accordingly):
(b)
the receiver has the onus of proving that section 16(2) of this Act authorises the release (and section 101 of that Act does not apply):
(c)
Part 5 of that Act applies subject to section 25 of this Act.
17 Protecting confidentiality by withholding official information
(1)
A receiver may must refuse a request for information under the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 as contrary to this Act if the information might identify the discloser of a protected disclosure.
(2)
Subsection (1) does not apply if the request is from a law enforcement or regulatory agency seeking the information for the purpose of law enforcement.
Compare: 2000 No 7 s 19(2)
Obligation not to retaliate or treat less favourably
18 Obligation not to retaliate or treat less favourably
(1)
Employers must not retaliate against a discloser who is an employee: see section 19.
(2)
A person must not treat another less favourably because of a protected disclosure: see section 20.
19 No retaliation by employer
(1)
An employer must not retaliate, or threaten to retaliate, against an employee because the employee intends to make or has made a protected disclosure.
(2)
If an employer retaliates, or threatens to retaliate, against an employee in breach of subsection (1), the employee has a personal grievance under section 103(1)(k) of the Employment Relations Act 2000.
(3)
Part 9 of that Act applies accordingly.
(4)
For the purposes of this section and section 18(1),—
employee has the meaning given in section 6 of the Employment Relations Act 2000
employer has the meaning given in section 5 of the Employment Relations Act 2000
retaliate means—
(a)
doing any of the following:
(i)
dismissing the employee:
(ii)
refusing or omitting to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances:
(iii)
subjecting the employee to any detriment or disadvantage (including any detrimental or disadvantageous effect on the employee’s employment, job performance, or job satisfaction) in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment or disadvantage:
(iv)
retiring the employee, or requiring or causing the employee to retire or resign:
(b)
organising to do anything described in paragraph (a).
Compare: 2000 No 7 s 17
20 No victimisation
(1)
A person (A) must not treat, or threaten to treat, another person (B) less favourably than A would treat other persons in the same or substantially similar circumstances because—
(a)
B (or a relative or associate of B)—
(i)
intends to make, or has made, a protected disclosure under this Act; or
(ii)
has encouraged another person to make a protected disclosure; or
(iii)
has given information or evidence in relation to any complaint, investigation, or proceeding arising out of in support of, or relating to, a protected disclosure; or
(b)
A believes or suspects that B (or a relative or associate of B) intends to do, or has done, anything described in paragraph (a).
(2)
Subsection (1) does not apply if B knowingly made a false allegation or otherwise acted in bad faith.
(3)
A breach of subsection (1) is unlawful under section 66(3) of the Human Rights Act 1993.
Compare: 1993 No 82 s 66
No retaliation in court or disciplinary proceedings
21 Immunity from civil, criminal, and disciplinary proceedings
(1)
Neither a discloser who makes a protected disclosure nor a receiver who refers a protected disclosure under section 15 is liable to any civil, criminal, or disciplinary proceeding because of making or referring the disclosure.
(2)
Subsection (1) applies despite any prohibition of or restriction on the disclosure of information under any legislation, rule of law, agreement, contract, internal procedure, oath, or practice.
Compare: 2000 No 7 s 18
No contracting out
22 No contracting out
(1)
This Act applies despite any agreement, contract, or internal procedure.
(2)
A provision in any agreement, contract, or internal procedure has no effect if it apparently requires a person to do any of the following:
(a)
not to disclose serious wrongdoing that is or could be a protected disclosure:
(aa)
not to disclose information that could support, or relate to, a protected disclosure:
(b)
to withdraw a protected disclosure:
(c)
to abandon a protected disclosure:
(d)
to make a disclosure of serious wrongdoing in a way that is inconsistent with this Act.
Compare: 2000 No 7 ss 6A(2), 23
Part 4 Appropriate authorities, special rules for certain organisations, Ombudsmen’s role, etc
Subpart 1—Appropriate authorities
23 Meaning of appropriate authority
(1)
In this Act, appropriate authority, without limiting the meaning of that term,—
(a)
includes the head of any public sector organisation; and
(b)
includes any officer of Parliament; and
(c)
includes (as examples) the persons or bodies listed in the second column of Schedule 2; and
(d)
includes the membership body of a particular profession, trade, or calling with the power to discipline its members; but
(e)
does not include—
(i)
a Minister; or
(ii)
a member of Parliament.
(2)
However,—
(a)
the appropriate authority for a protected disclosure that is or includes international relations information is an Ombudsman only:
(b)
the appropriate authority for a protected disclosure that is or includes intelligence and security information is the Inspector-General of Intelligence and Security only. See—
(i)
section 25(2A) for a disclosure relating to serious wrongdoing in or by the office of the Inspector-General:
(ii)
section 15(7) for the Inspector-General’s ability to refer:
(iii)
sections 13 and 25 for the discloser’s entitlement to disclose further.
Compare: 2000 No 7 ss 3(1), 12(2)(b), 13(2)(a)
24 Schedule 2 may be amended by Order in Council
(1)
The Governor-General, by Order in Council made on the recommendation of the Minister responsible for the administration of this Act, may amend Schedule 2 by doing either or both of the following:
(a)
adding, deleting, or amending the name of an appropriate authority:
(b)
adding, deleting, or amending a description of the nature of concerns.
(2)
The Minister must not recommend that an order be made under subsection (1) unless the Minister has consulted the relevant appropriate authority.
(3)
An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Subpart 2—Special rules for intelligence, security, and international relations information
25 Special rules for intelligence and security information
(1)
A person may only disclose intelligence and security information to someone who holds an appropriate security clearance and is authorised to have access to the information.
(2)
A discloser who has made, or is considering making, a protected disclosure that is or includes intelligence and security information may seek information and guidance from the Inspector-General of Intelligence and Security only (and not from an Ombudsman).
(2A)
A discloser is entitled to protection under this Act for a protected disclosure made to the Prime Minister that—
(a)
is or includes intelligence and security information; and
(b)
relates to serious wrongdoing in or by the office of the Inspector-General of Intelligence and Security—
and sections 11(4) and 11A apply section 11(4) and (5) applies accordingly.
(3)
A person must not disclose intelligence and security information to—
(a)
an Ombudsman; or
(b)
any Minister except for the Prime Minister or the Minister responsible for an intelligence and security agency.
(4)
An intelligence and security agency, and any other public sector organisation that holds or has access to intelligence and security information, must—
(a)
have internal procedures that reflect subsections (1) to (3)(2A); and
(b)
comply with apply sections 12, 16, and 27 in a way that is consistent with this section (in relation to intelligence and security information).
(5)
The Inspector-General of Intelligence and Security may disclose intelligence and security information disclosed or referred under this Act only in accordance with subpart 1 of Part 6 of the Intelligence and Security Act 2017.
(6)
This section overrides section 16(4).
(7)
Section 13 is subject to this section.
(7)
For the purposes of section 13(2), the only Minister a discloser may disclose intelligence and security information to is the Prime Minister or the Minister responsible for an intelligence and security agency.
Compare: 2000 No 7 ss 12, 14
26 Special rules for international relations information
(1)
An international relations agency must—
(a)
have internal procedures that reflect subsection (3); and
(b)
comply with section 27(2)(c) in a way that is consistent with this section.
(2)
The Ombudsman may disclose international relations information only in accordance with the Ombudsmen Act 1975.
(3)
For the purposes of section 13(2)(a), the only Minister a discloser may disclose international relations information to is the Prime Minister or the Minister responsible for foreign affairs or trade.
Compare: 2000 No 7 ss 13, 14
Subpart 3—Special rules for all public sector organisations
27 Public sector organisations must have internal procedures
(1)
Every public sector organisation must have appropriate internal procedures.
(2)
The internal procedures must—
(a)
comply with the principles of natural justice; and
(aa)
set out a process that complies with is consistent with section 12; and
(b)
identify who in the organisation a protected disclosure of serious wrongdoing in or by that organisation may be made to; and
(c)
include, in relation to a protected disclosure of serious wrongdoing in or by that organisation,—
(i)
a reference to the requirement in section 19 that the organisation not retaliate, or threaten to retaliate, against the a discloser; and
(ii)
a reference to the requirement in section 20 that the organisation not treat, or threaten to treat, the a discloser less favourably than others; and
(iv)
a description of how the organisation will consider the disclosure; and
(v)
a description of the circumstances in which the disclosure may be referred under section 15; and
(vi)
a description of how the organisation will provide practical assistance and advice to disclosers (for example, by having a support person assess any risks to the a discloser); and
(vii)
a description of how the organisation will meet the duty of confidentiality in section 16.
(3)
The organisation must publish widely (and republish at regular intervals)—
(a)
information about the existence of the internal procedures; and
(b)
adequate information on about how to use the procedures.
Compare: 2000 No 7 s 11
Subpart 4—Ombudsmen’s role
28 Role of Ombudsmen in providing information and guidance
(1)
An Ombudsman may provide information and guidance to any person on any matter about this Act (either after a request or at the Ombudsman’s discretion).
(2)
If a discloser notifies the Ombudsmen an Ombudsman that the discloser has made, or is considering making, a protected disclosure, an Ombudsman must provide information and guidance to the discloser about the following (as relevant):
(a)
which disclosures are protected under this Act:
(b)
the persons to whom information may be disclosed under this Act:
(c)
how to disclose information in accordance with sections 11 and 11Asection 11 in order to be entitled to protection under this Act:
(d)
a summary of the role of each appropriate authority:
(e)
the protections available under this Act and under the Human Rights Act 1993:
(f)
how a disclosure may be referred under section 15.
(3)
An Ombudsman may—
(a)
provide information and guidance to organisations and disclosers about the circumstances in which anonymous protected disclosures may be made; and
(b)
otherwise provide advice and assistance to organisations and other persons about the duty of confidentiality in section 16.
(4)
This section does not apply to a disclosure that is or includes intelligence and security information (and section 25 applies instead).
Compare: 2000 No 7 ss 6B, 19(3)
29 Information about internal procedures
(1)
For the purpose of this Act, an Ombudsman may request 1 or more of the following from an organisation:
(a)
information about whether the organisation has established and published internal procedures; and
(b)
a copy of those procedures; and
(c)
information about how those procedures operate.
(2)
However, the Inspector-General of Intelligence and Security, and not an Ombudsman, has the power described in subsection (1) in relation to an intelligence and security agency.
(3)
An organisation is not required to comply with a request made under subsection (1) if it is not a public sector organisation.
Compare: 2000 No 7 s 6C
30 Ombudsmen may escalate protected disclosure to Minister or investigate disclosure
(1)
An Ombudsman may, with the consent of a discloser who has made a protected disclosure in accordance with this Act to an organisation or another appropriate authority,—
(a)
refer the disclosure to a Minister if the Ombudsman considers, after consulting that Minister, that the receiver of the disclosure—
(i)
has not acted as it should under section 12; or
(ii)
has not dealt with the matter so as to address the serious wrongdoing; or
(b)
investigate the disclosure if the disclosure relates to serious wrongdoing in or by a public sector organisation and the Ombudsman considers that the receiver of the disclosure—
(i)
has not acted as it should under section 12; or
(ii)
has not dealt with the matter so as to address the serious wrongdoing.
(2)
Subsection (1) does not authorise an Ombudsman to act under that subsection if—
(a)
the disclosure relates to serious wrongdoing in or by the office of an officer of Parliament; or
(b)
the receiver is an officer of Parliament.
(3)
The Ombudsman must promptly notify a referral or an investigation under subsection (1) to any person that the Ombudsman understands may be investigating the disclosure.
(4)
A disclosure may be referred on more than 1 occasion.
(5)
This section does not apply if a disclosure is or includes intelligence and security information (and section 25 applies instead).
(6)
In relation to a disclosure that is or includes international relations information, an Ombudsman must comply with this section in a way that is consistent with section 26.
Compare: 2000 No 7 s 15
31 Ombudsmen may take over some investigations or investigate together with public sector organisation
(1)
This section applies to a protected disclosure relating to serious wrongdoing in or by a public sector organisation.
(2)
An Ombudsman may take over an investigation of a disclosure from a public sector organisation, or investigate a disclosure together with a public sector organisation, if—
(a)
the Ombudsman considers that the organisation—
(i)
has not acted as it should under section 12; or
(ii)
has not dealt with the matter so as to address the serious wrongdoing; and
(b)
the discloser who made the disclosure consents; and
(c)
in the case of an investigation together with a public sector organisation, the public sector organisation consents to the Ombudsman acting under this section.
(3)
However, this section does not apply to a disclosure that is or includes intelligence and security information (and section 25 applies instead).
Compare: 2000 No 7 s 15A
32 Ombudsmen may review and guide investigations by public sector organisations
(1)
An Ombudsman may review and guide an investigation of a protected disclosure by a public sector organisation (either at the organisation’s request or at the Ombudsman’s discretion).
(2)
However, subsection (1) does not apply to a disclosure that is or includes intelligence and security information (and section 25 applies instead).
(3)
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.
Compare: 2000 No 7 s 15B
33 Ombudsmen may receive reports on investigations and include information in annual report
(1)
The Ombudsmen may receive reports on the following investigations:
(a)
investigations referred under section 30:
(b)
investigations in which an Ombudsman has acted under section 31:
(c)
investigations in relation to which an Ombudsman has otherwise provided information or guidance under this Act.
(2)
The Ombudsmen may include in their annual report under section 29 of the Ombudsmen Act 1975 information about all or any of the following (for the period covered by the report):
(a)
current guidance issued by the Ombudsmen about this Act:
(b)
the number and types of information and guidance inquiries made to the Ombudsmen about the matters in this Act:
(c)
the number of protected disclosures made to the Ombudsmen:
(d)
the number of investigations undertaken or taken over by the Ombudsmen:
(e)
the number of investigations referred under section 30:
(f)
the outcome of the matters referred to in paragraphs (b) to (e) (if known by the Ombudsmen).
Compare: 2000 No 7 s 15C
34 Chief Ombudsman may appoint persons to perform Ombudsman’s functions under this Act
The Chief Ombudsman may, by notice, appoint a person to perform an Ombudsman’s functions under this Act.
Compare: 2000 No 7 s 15D
35 Ombudsmen’s functions and powers
(1)
The functions and powers of Ombudsmen under the Ombudsmen Act 1975, including the function of each Ombudsman to investigate a matter of their 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 protected disclosure made under this Act as Ombudsmen have in relation to a complaint under the Ombudsmen Act 1975, but are not bound to investigate a protected disclosure.
(3)
Sections 19, 20, and 30 of the Ombudsmen Act 1975 apply, with all necessary modifications, to allow an Ombudsman to obtain information, documents, papers, or things that would in the Ombudsman’s opinion assist the Ombudsmen to act under this Act in relation to a public sector organisation.
Compare: 2000 No 7 s 15E
Subpart 5—Other protections and privileges
36 Other protections not limited
This Act does not limit any statutory or other protection, privilege, immunity, or defence relating to the disclosure of information.
Compare: 2000 No 7 s 21
37 Legal professional privilege
(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.
Compare: 2000 No 7 s 22
Subpart 6—Consequential amendments and repeal
38 Consequential amendments
Amend the Acts specified in Schedule 3 as set out in that schedule.
39 Repeal of Protected Disclosures Act 2000
The Protected Disclosures Act 2000 (2000 No 7) is repealed.
Schedule 1 Transitional, savings, and related provisions
s 5
Part 1 Provisions relating to this Act as enacted
1 Disclosure made after commencement of this Act
(1)
This Act applies to a protected disclosure made after the commencement of this Act (whether the alleged serious wrongdoing occurs before or after then).
(2)
If substantially the same disclosure was also made under the Protected Disclosures Act 2000, sections 11 to 15 apply with all necessary modifications.
2 Disclosure made before commencement of this Act
The Protected Disclosures Act 2000 continues to apply to a protected disclosure made under that Act before the commencement of this Act.
Schedule 2 Examples of concerns and examples of appropriate authorities
s 23
| Nature of concerns | Appropriate authority | |
|---|---|---|
Anticompetitive conduct |
Commerce Commission |
|
Banks (registered banks) |
Reserve Bank of New Zealand |
|
Bullying or harassment, including sexual harassment |
WorkSafe New Zealand (where work-related) Human Rights Commission |
|
Charities |
Department of Internal Affairs Solicitor-General |
|
Child welfare and child protection |
Oranga Tamariki—Ministry for Children Ombudsman |
|
Consumer protection |
Commerce Commission |
|
Crime |
Commissioner of Police Director of the Serious Fraud Office |
|
Discrimination |
Human Rights Commission |
|
Education service |
Ministry of Education Education Review Office |
|
Energy safety |
WorkSafe (where work-related) |
|
Environment |
Ministry for the Environment Department of Conservation |
|
Financial reporting (private sector–issuers and large companies) |
Financial Markets Authority |
|
Financial reporting (public sector) |
Controller and Auditor-General |
|
Financial service providers’ conduct |
Financial Markets Authority |
|
Health |
Ministry of Health Health and Disability Commissioner |
|
|
Ministry of Business, Innovation, and Employment WorkSafe New Zealand |
|
Housing |
Ministry of Housing and Urban Development Ombudsman |
|
Insurers (licensed insurers) |
Reserve Bank of New Zealand |
|
Intelligence and security or classified information |
Inspector-General of Intelligence and Security only (see section 25) |
|
International relations |
Ombudsman only (see section 26) |
|
Local Government |
Ombudsman Controller and Auditor-General Department of Internal Affairs |
|
Police |
Commissioner of Police Independent Police Conduct Authority |
|
Privacy of individuals or security of personal information |
Privacy Commissioner |
|
Professional or trade conduct |
Ministry of Business, Innovation, and Employment |
|
Prosecutions |
Solicitor-General |
|
Public sector |
Ombudsman Controller and Auditor-General |
|
Public service |
Public Service Commission |
|
Racism |
Human Rights Commission |
|
Sector regulation |
Commerce Commission |
|
Social support or benefits |
Ombudsman |
|
State services |
Public Service Commission The Treasury (for State-owned enterprises, Crown companies, and organisations named or described in Schedule 4 of the Public Finance Act 1989) |
|
Transport and transport safety issues |
Ministry of Transport |
|
Whistleblowing and protected disclosures |
Ombudsman |
Schedule 3 Consequential amendments
s 38
Employment Relations Act 2000 (2000 No 24)
In section 67B(3), replace “(j)”
with “(k)”
.
After section 103(1)(j), insert:
(k)
that the employer has retaliated, or threatened to retaliate, against the employee in breach of section 19 of the Protected Disclosures (Protection of Whistleblowers) Act 2020 (because the employee intends to make or has made a protected disclosure).
After section 110A, insert:
110B Retaliation against whistleblower
(1)
For the purposes of this Part, retaliate has the meaning given to it by in section 19 of the Protected Disclosures (Protection of Whistleblowers) Act 2020.
(2)
An employer may be found to have retaliated, or threatened to retaliate, only if the protected disclosure was a substantial reason for the employer’s relevant actions or omissions.
(3)
The burden of proof is on the employer to prove, on the balance of probabilities, that the disclosure was not a substantial reason for the employer’s actions or omissions.
In section 111, replace “and adverse conduct for prohibited health and safety reason”
with “adverse conduct for prohibited health and safety reason, and retaliate”
.
In section 111, replace “and 110A”
with “110A, and 110B”
.
Human Rights Act 1993 (1993 No 82)
Replace section 66 with:
66 Victimisation of whistleblower or person making use of rights prohibited
(1)
It is unlawful for any person (A) to treat, or threaten to treat, another person (B) less favourably than A would treat other persons in the same or substantially similar circumstances because—
(a)
B (or a relative or associate of B)—
(i)
intends to make, or has made, use of their rights under this Act; or
(ii)
has made has encouraged another person to make use of their rights, or has promoted the rights of another person, under this Act; or
(iii)
has given information or evidence in relation to in support of, or relating to, any complaint, investigation, or proceeding under this Act; or
(iv)
has declined to do an act that would contravene this Act; or
(v)
has otherwise done anything under or by reference to this Act; or
(b)
A believes or suspects that B (or a relative or associate of B) intends to do, or has done, anything mentioned in paragraph (a).
(2)
Subsection (1) does not apply if B knowingly made a false allegation or otherwise acted in bad faith.
(3)
Any breach of section 20(1) of the Protected Disclosures (Protection of Whistleblowers) Act 2020 is unlawful under this Act. The rest of this Act applies to that breach (so that, for example, if B is an employee or agent, section 68 of this Act applies to any employer or principal of B section 68 of this Act applies to treat employee actions or omissions as done or omitted by their employer).
Intelligence and Security Act 2017 (2017 No 10)
After section 171(4), insert:
(5)
The ability to complain under this section is in addition to the ability to make a protected disclosure under the Protected Disclosures (Protection of Whistleblowers) Act 2020.
Ombudsmen Act 1975 (1975 No 9)
In section 15(1) and (2), replace “Protected Disclosures Act 2000”
with “Protected Disclosures (Protection of Whistleblowers) Act 2020”
.
In section 26(1)(a) and (b), (3), and (4), replace “Protected Disclosures Act 2000”
with “Protected Disclosures (Protection of Whistleblowers) Act 2020”
.
In section 29, replace “Protected Disclosures Act 2000”
with “Protected Disclosures (Protection of Whistleblowers) Act 2020”
.
Legislative history
24 June 2020 |
Introduction (Bill 294–1) |
|
30 June 2020 |
First reading and referral to Education and Workforce Committee |
|
29 March 2021 |
Reported from Education and Workforce Committee |
|
(Bill 294–2) |
||
9 November 2021 |
Second reading |
|
8 March 2022 |
Committee of the whole House |
Versions
Protected Disclosures (Protection of Whistleblowers) Bill
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