The Bill is now awaiting Royal Assent and will come into force on 1 July 2022, repealing and replacing the Protected Disclosures Act 2000 (PDA). The Bill aims to better facilitate protected disclosures through more accessible legislation, and strengthen and clarify available protections for those who ‘blow the whistle’ on serious wrongdoing in their workplace or former workplace.
As discussed in our previous updates on 21 February 2020 and 1 July 2020, the PDA received little attention until the (then) State Services Commission recommended a review of the Act in 2017. Public consultation on proposed options for reform occurred in 2018. In 2020 the government announced its proposed legislative reform, signalling an intention to address some of the issues posed by the PDA and also ensure any new legislation was more accessible and easier to understand. Public awareness of the PDA over the past 20 years has historically been very low, resulting in a lack of understanding and a lack of use by employees and other workers.
In our last update, we identified some of the key changes that the Bill would introduce, including:
- Extending the definition of serious wrongdoing to cover the misuse of public funds and the delivery of public services by the private sector.
- Enabling disclosers to report on serious wrongdoing directly to an appropriate authority at any time.
- Providing guidance on the process for disclosers and receivers.
- Clarifying potential forms of adverse conduct against disclosers.
- Providing more information on the context of public sector policies on protected disclosures, and information they must include, for example a description of how practical assistance and advice to disclosers will be provided.
Since that update, there have been a few amendments to the Bill that are worth noting:
- The definition of serious wrongdoing now expressly includes behaviour that is a serious risk to the health and safety of any individual (which could include instances of sexual harassment and bullying).
- A new clause has been added to make it clear that another discloser, who discloses information in support of, or relating to, a protected disclosure is also entitled to protection under the Bill even if they are required to disclose that information.
- If a receiver decides that no action is required in respect of a disclosure, they must now inform the discloser and provide reasons for their decision.
- Similarly, there is now an obligation on the receiver to inform the discloser after the receiver releases identifying information about the discloser. This obligation is additional to consultation obligations that apply before the release, and identifying information can only be released where it is provided for in the Bill.
- The Bill proposes amendments to the Privacy Act 2020 to provide for enhanced protections for disclosers, meaning that the release of information that may identify a discloser can amount to an interference with privacy, even if no harm has occurred.
- The Bill clarifies that potential disclosers cannot be prevented from providing supporting information by any agreement, contract, or internal procedure (which would include, for example, a confidential settlement or non-disclosure agreement).
Other key points to note
There is tension in the Bill between some provisions that are mandatory, and others that are expressed as guidance. The Select Committee made it clear that the recommended steps that a receiver should take within 20 working days of receiving a protected disclosure is guidance only. While there were submitters who thought the clause should be mandatory and enforceable, the Select Committee felt that this was inappropriate in circumstances where there is no specific penalty regime, and because the legislation also covers the private sector.
The Select Committee identified various concerns about the Bill. One concern was whether employees would use the mechanisms in the Bill to raise personal grievances that may technically constitute serious wrongdoing under the Bill, but are better placed to be dealt with under the Employment Relations Act 2000 (or similar). The Committee decided that this concern was addressed by providing that a receiver may decide that no action is required because the matter is better addressed by other means. However, in our view, this concern is heightened by the subsequent expansion of the ‘serious wrongdoing’ definition to include serious risks to an individual’s health or safety, which could apply in situations of bullying or sexual harassment. This is likely to create further complexity for businesses trying to manage different legislative obligations and processes in relation to the same issue.
There were a number of other suggestions by the Select Committee that were not addressed through amendments to the Bill, including identifying the need for clearer provisions relating to tikanga Māori, and about how the Bill would interact with other legislation that contains disclosure or reporting requirements (such as the Financial Markets Conduct Act 2013).
Where to from here?
Time will tell whether the Bill is sufficient to meet its intended purposes. In this regard, it is important to note that the Bill does not replicate the significant reform around protected disclosures that we have seen in Australia and the EU.
No review period has been provided for in the Bill, despite this being recommended by the Select Committee. That may be because further work on protected disclosures was always anticipated, although the Minister in charge of the Bill has indicated that this work has been delayed due to COVID-19. Further work is likely to include considerations around a ‘one stop shop’ agency responsible for protected disclosures and whether the definition of ‘serious wrongdoing’ should be further extended. It is also likely to include considerations on whether requirements about internal procedures should be extended to the private sector and whether to introduce reporting requirements around protected disclosures. Businesses will therefore need to continue to monitor this space for further developments.
In the meantime, employers (particularly in the public sector) should familiarise themselves with the changes, and review and revise any whistleblowing policies and procedures accordingly. Further guidance on the changes should also be available from the Public Service Commission and the Ombudsman ahead of the Bill coming into force on 1 July 2022.
The full text of the Protected Disclosures (Protection of Whistleblowers) Bill is available here.
If you have any questions on the new legislation and how it will impact you or your business, please get in touch with the contacts listed or your usual Bell Gully adviser.