Proposed changes
The New Zealand whistleblowing regime is currently governed by the Protected Disclosures Act 2000 (PDA). On 20 February the Minister of State Services, Hon. Chris Hipkins, said the government will make legislative amendments which are aimed at addressing key deficiencies in the PDA, including:
- providing a clearer pathway for whistleblowers to report serious wrongdoing to an external authority if they want to
- imposing firmer obligations on those who receive a disclosure to protect whistleblowers
- requiring public sector organisations to provide support to whistleblowers
- extending the definition of serious wrongdoing to include misuse of public funds or public authority by non-government organisations
The current structure encourages whistleblowers to make internal disclosures in accordance with the employer's policy, but is unclear about what an individual or organisation must do once they receive a protected disclosure.
In addition to legislative reform, the State Services Commission (SSC) will continue to consider further possible amendments to the PDA. The SSC has also committed to building greater awareness of the PDA, improving existing guidance, testing the practicability of reporting protected disclosures and reviewing the effectiveness of systems that receive protected disclosures. The Minister stated that the SSC will also consider a “one stop shop" for disclosures; however, it is unclear what that would look like.
No bill has been drafted yet, but the Minister has said: “Strengthening our protected disclosures regime is critical to maintaining public confidence in the integrity of government and business in New Zealand. International research found that reporting by employees is the single most important method by which wrongdoing in, or by, an organisation is brought to light."
What's driving changes to whistleblower protection?
The Protected Disclosures Act 2000 has largely been unchanged since its introduction, and received limited legislative attention or judicial consideration. Public awareness, understanding and use has also been typically low.
The purpose of the PDA is to encourage employees to report serious wrongdoing in their workplace by protecting whistleblowers from retaliation and losing their job. It applies to both the private and public sector and also binds the Crown.
The PDA:
- defines key concepts, such as “serious wrongdoing" (which sets the parameters for a protected disclosure)
- describes who is an eligible whistleblower, including employees, former employees, contractors; volunteers and members of a board
- describes the protections in place for whistleblowers and when they apply
- describes the options available for making a protected disclosure.
It has been recognised for some time that the PDA does not provide a clear process for whistleblowers and organisations to follow, and does not provide sufficient protection to whistleblowers once a disclosure has been made. The SSC initiated a review in late 2018 and sought submissions from the public. The review came after a long period of speculation and commentary that the regime should be amended.
Where to from here?
The government hopes that the proposed changes will give those making protected disclosures and receiving protected disclosures confidence and greater clarity.
We consider that the SSC will be closely watching developments in Australia, which recently overhauled their own whistleblowing laws. The Australian changes particularly impacted on the private sector. The reformed Australian scheme is considered far more complex and onerous than the current New Zealand rules. Compliance with amendments in Australia largely took effect 1 January 2020 so how much of a positive impact they will have remains to be seen. Whether similar reforms will be introduced here is also unclear as yet.
If you have any questions on the proposed reforms, please get in touch with the contacts listed or your usual Bell Gully adviser.
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.