This page provides information about 'whistle-blowing' under the Protected Disclosures Act
- What is the Protected Disclosures Act?
- What is 'serious wrongdoing'?
- When is a disclosure protected?
- How do you make a protected disclosure?
- What are appropriate authorities?
- What are the protections?
- What does the Ombudsman do?
The purpose of the Protected Disclosures Act (the Act) is to encourage people to report serious wrongdoing in their workplace by providing protection for employees who want to ‘blow the whistle’. This applies to public and private sector workplaces.
Serious wrongdoing includes:
- unlawful, corrupt or irregular use of public money or resources
- conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law
- any criminal offence
- gross negligence or mismanagement by public officials.
To make a protected disclosure, you must be an 'employee' of the organisation you are making the disclosure about.
Under the Act, ‘employee’ includes:
- former employees
- people seconded to organisations
Your disclosure will be protected if:
- the information is about serious wrongdoing in or by your workplace
- you reasonably believe the information is true or likely to be true, and
- you want the serious wrongdoing to be investigated.
Your disclosure won’t be protected if:
- you know the allegations are false
- you act in bad faith
- the information you’re disclosing is protected by legal professional privilege.
Generally speaking, protected disclosures must be made in accordance with your organisation’s internal procedures for dealing with information about serious wrongdoing. Public sector organisations are required to have these internal procedures.
Protected disclosures can be made to the head of your organisation if:
- Your organisation doesn’t have any internal procedures
- You reasonably believe that the person you’re supposed to make disclosures to is involved in the serious wrongdoing, or is associated with someone who is.
Protected disclosures can be made to an appropriate authority if you reasonably believe:
- The head of the organisation is involved in the serious wrongdoing
- It is justified because of urgent or exceptional circumstances
- You’ve made the disclosure in accordance with your organisation’s internal procedures, but there’s been no action or recommended action within 20 working days.
If you’ve followed these procedures, there is scope for your protected disclosure to be escalated to an Ombudsman or Minister of the Crown in certain circumstances.
Appropriate authorities include:
- The Ombudsman
- The Commissioner of Police
- The Controller and Auditor-General
- The Director of the Serious Fraud Office
- The Inspector-General of Intelligence and Security
- The Parliamentary Commissioner for the Environment
- The Independent Police Conduct Authority
- The Solicitor-General
- The State Services Commissioner
- The Health and Disability Commissioner
- The head of every public sector agency
- The heads of certain private sector professional bodies with the power to discipline their members
The Act provides that no civil, criminal, or disciplinary proceedings can be taken against a person for making a protected disclosure, or for referring one to an appropriate authority.
The Act also provides that an employee who suffers retaliatory action by their employer for making a protected disclosure can take personal grievance proceedings under the Employment Relations Act.
It is also unlawful under the Human Rights Act to treat whistle-blowers or potential whistle-blowers less favorably than others in the same or similar circumstances. If a whistle-blower is victimised in this way the legal remedies under the Human Rights Act may be available to them.
If you make a protected disclosure, information which identifies you will be kept confidential, unless one of the exceptions in the Act applies.
The exceptions are if you consent to the disclosure, or if disclosure is essential:
- to the effective investigation of the allegations
- to prevent serious risk to public health or safety, or the environment
- to comply with the principles of natural justice.
The Ombudsman provides information and guidance to people who have made, or want to make, a protected disclosure.
The Ombudsman is also one of the authorities listed in the Act to whom protected disclosures can be made. However, the proper processes need to followed first (see how do you make a protected disclosure).
Contact us for information or guidance. Your enquiries will be treated in confidence.
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