The Protected Disclosures Act 2000 (PDA) and the Privacy Act 1993 (Privacy Act) govern whistle-blowing in New Zealand. The PDA allows information about serious wrongdoing to be disclosed by an employee of an organization (employee includes former employees, contractors, directors, secondees and volunteers).
For a disclosure to be protected, the whistle-blower must have reasonable grounds to believe that the information is true or likely to be true, must have made the disclosure so that the serious wrongdoing can be investigated, and the whistle-blower must wish to be protected.
“Serious wrongdoing” can include:
- An unlawful, corrupt or irregular use of funds or resources
- Acts, omissions or conduct that constitute a serious risk to public health, safety or the environment
- Acts, omissions or conduct that constitute a serious risk to the maintenance of law
- Criminal offenses
Protected disclosures must be made in accordance with an organization’s internal whistle-blowing procedure. Public sector organizations are required to have these internal procedures.
If an organization has no internal procedure, disclosures can often be made to the head of the entity. Whistle-blowers may also make a disclosure to the head of the entity if they reasonably believe that the usual recipient of the complaint is involved in or associated with the serious wrongdoing.
Further escalation to an “appropriate authority” is available if the whistle-blower reasonably believes that the head of the entity is involved in the wrongdoing or if there has been no action or recommended action regarding the disclosure within 20 working days.
Anonymous disclosures are not prohibited, but if a disclosure is made anonymously, it may be more difficult to determine whether the PDA applies (e.g., determining whether the whistle-blower is an employee and whether the disclosure is made in good faith), and it may be more difficult to investigate the allegation. Organizations can set their own internal procedures to manage anonymous disclosures.
Organizations are expected to keep the identity of a whistle-blower confidential unless an exception applies (e.g., if disclosure of the identity is essential to the effective investigation of the allegations, to prevent serious risk to public health or safety or the environment, or to comply with the principles of natural justice). The Privacy Act also supports the protection of the confidentiality of a whistle-blower’s information.
The PDA prevents any civil, criminal or disciplinary proceedings or other retaliation from being taken against a person for making a protected disclosure or referring one to an appropriate authority. If employees suffer retaliation, they may bring a personal grievance or a claim under the Human Rights Act 1993.
Once a whistle-blowing complaint is made, the organization must quickly and thoroughly analyze the facts and circumstances to determine both the scope of the investigation and who is best placed to conduct the inquiry.
Complaints of a less serious nature may be managed by an internal decision-maker, but more serious complaints are likely to require an external investigator, especially if senior employees are implicated or there is public interest.
An independent ombudsman service is available to assist individuals in making a protected disclosure under the PDA.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.