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New Zealand Amends Whistleblowing Legislation

New Zealand has changed the framework for disclosing wrongdoing and protecting whistleblowers.

Protected Disclosures (Protection of Whistleblowers) Act 2022 that entered into force on 1 July 2022 provides for the following amendments:

1. Protected disclosures

The Act amends the definition of “serious wrongdoing” whose disclosure entitles whistleblowers to protection. From now on, this wrongdoing means:

  • an offence;
  • an act or omission that poses a serious risk to public health and safety, the health and safety of any individual or the environment;
  • an act or omission that poses a serious risk to the maintenance of law, including the prevention, investigation and detection of offences and the right of fair trial;
  • an unlawful or a corrupt use of public funds;
  • an act or omission of an employee that is oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement.

Whistleblowers can disclose information about these wrongdoings both in the public and the private sectors.

2. Reporting channels

The Act complements the requirements to internal channels that should be established in all bodies (public sector organisations) by introducing the obligation to incorporate the following provisions in the internal disclosure procedures:

  • the prohibition to retaliate against the discloser’s employment;
  • the list of circumstances under which the disclosed information can be referred to an appropriate authority;
  • the procedure for providing practical assistance and advice to whistleblowers (for example, assessment of all risks associated with the disclosure);
  • the description of the procedure for keeping the whistleblower’s data confidential.

3. Procedure for disclosing and processing reports

As regards the procedure for disclosing information, the Act entitles whistleblowers to directly report to any appropriate authority with no need to disclose their concerns through the internal channels of their bodies (organisations)*.

Within 20 working days of receiving a disclosure, the appropriate authorities should:

  • acknowledge to the reporting person the disclosure was received;
  • consider the disclosure and whether it warrants investigation;
  • check whether the disclosure has been made elsewhere;
  • follow the disclosure up, in particular 1) investigate it, 2) address the wrongdoing by acting or recommending action, 3) refer the disclosure to another appropriate authority or organisation related to the disclosure, or 4) inform the whistleblower that no action with regard to the reported wrongdoing is required;
  • inform the discloser about what they have done or are doing to deal with the matter.

4. Protections

The Act stipulates that the employer is obliged not to retaliate against the whistleblower and clarifies the list of reprisals. These are, in particular:

  • dismissing the employee, requiring or causing the employee to retire or resign;
  • non-complying with labour law, in particular, by refusing to offer to the employee opportunities for promotion, transfer or training, fringe benefits, violation of other labour rights that are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances;
  • subjecting the employee to any detrimental 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.

The Act also obliges the employer not to treat, or threaten to treat, the employee less favourably than it would treat other employees in the same or substantially similar circumstances because the employee:

  • has made or intends to make a disclosure or has encouraged another person to make a disclosure;
  • has given information in support of a disclosure.

*In accordance with the Protected Disclosures Act 2000, reporting to external channels was possible only under the following conditions:

  • the whistleblower had reasonable grounds to believe that the head of the organisation is or may be involved in the serious wrongdoing alleged in the disclosure;
  • 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
  • there has been no action on the matter to which the disclosure relates within 20 working days after the date on which the disclosure was made.
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