The Protected Disclosures (Protection of Whistleblowers) Bill (Bill) was introduced in June last year and is currently at the ‘Committee of the Whole House’ stage, meaning it has a reasonable chance of being passed into law in early 2022.
The Bill, if enacted, will replace the current Protected Disclosures Act 2000.
Purpose
The Bill’s stated purpose is to help promote the public’s interest in facilitating the disclosure and investigation of serious wrongdoing in the workplace, while ensuring those who report concerns are protected. The Right Honourable Peeni Henare commented in the first reading of the Bill that an “if in doubt, speak up” culture is important to act as a deterrent to prevent wrongdoing in the first place.
Select Committee
The Education and Workforce Committee reviewed the original iteration of the Bill and recommended a rewrite, including:
- clarifying that the Bill covers both public and private organisations;
- clarifying that although the Bill lists steps for organisations to take when receiving an allegation of serious wrongdoing, those steps are ‘guidance’ only, as that section of the Bill is not backed up by an enforcement or penalty regime;
- ensuring organisations inform the party making an allegation if the organisation decides to take no further action and ensuring the organisation give reasons;
- allowing parties whom allege serious wrongdoing to take the matter to a Minister or an Ombudsman, if they believe the organisation has not addressed the allegations; and
- requiring organisations to inform the party making the allegations, if personally identifying information about that party is released.
Possible further changes
The Committee also asked the Minister to consider amending the definition of ‘serious wrongdoing’. This could have a substantial impact. The Committee advised the Minister that the behavioural aspects of the definition are focused on serious and immediate risks or hazards, rather than issues that could have an ongoing or cumulative effect on an individual or individuals. The Committee stated:
“It is our view that including more specific references to wrongful behaviour towards individuals, putting individuals at risk, or breaching their human rights could help address some of the issues raised in submissions.”
In our view, this will be the most interesting part of the Bill to see develop. Does the Bill become a tool for employees to express a litany of minor grievances, or is the fact that the organisation can take no further action enough to blunt that risk? Does this mean the Ombudsman will be flooded with employee complaints?
The Committee also asked the Minister to ensure protection for both those required to disclose wrongdoing and those voluntarily doing so.
Overall, we think the Bill is necessary to replace the current Protected Disclosures Act 2000. Research has confirmed that “reporting by employees is the single most important method by which illegal or corrupt activity in the workplace is brought to light”. Thus, a clearer and more effective reporting regime which encourages people to “speak up about serious wrongdoing”, as this Bill proposes, is essential. The parameters of the ability to report wrongdoing will be interesting to see debated in Parliament and we will provide an update when available.
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