Protected disclosures information for organisations

When someone reports serious wrongdoing, this is called a protected disclosure, and the protections are provided under the Protected Disclosures Act (Protection of Whistleblowers) Act 2022 (the Act).

The Act applies to all organisations in New Zealand. However, some sections only apply to public sector organisations.

Both current and previous employees can report serious wrongdoing under the Act.

People are protected by the Act if they report serious wrongdoing in good faith, in line with the Act.

Protected disclosures covered by the Act

People can report decisions, acts, omissions or courses of conduct that they believe amount to serious wrongdoing. This could be:

a crime under law that is punishable by fine, community detention or imprisonment;
something that could pose a serious danger to people, the health system, or to the environment if nothing is done about it;
interfering with the prevention, detection, investigation or prosecution of a crime, or interfering with a court case;
using money or resources from the government in a way that is not authorised or legally allowed.

Public sector employees and people acting on behalf of the Government or a public sector organisation, can also disclose decisions, acts, omissions or conduct that are:

oppressive
unlawfully discriminatory
grossly negligent, or
gross mismanagement.

If they disclose information that is protected by legal professional privilege, this is not protected under the Act.

Who can receive a protected disclosure?

Your organisation can receive protected disclosures. People can raise their concerns to the head or deputy head of your organisation, or anyone else your organisation has designated to receive protected disclosures.

Independent agencies can also receive protected disclosures. The Act allows certain agencies referred to as “appropriate authorities” to deal with protected disclosures. This includes:

regulators and law enforcement agencies
the head of any public sector organisation
Officers of Parliament (like the Ombudsman or the Auditor-General), or
professional bodies that can discipline their members (like the Law Society or the Plumbers, Gasfitters and Drainlayers Board).

The Act includes a list of examples of appropriate authorities at Schedule 2 to the Act.

Ministers can receive some protected disclosures. People can raise their concerns to a Minister if the people who received their disclosure didn’t address the serious wrongdoing, or take the appropriate actions under section 13 of the Act.

What to do when you receive a disclosure

Under the Act, you should do the following within 20 working days of receiving a protected disclosure:

Acknowledge you have received it, and when you received it.
Consider if you are required to investigate it.
Check if the person has disclosed it to anyone else, and what happened if they did.
Deal with the disclosure by investigating it, addressing the serious wrongdoing, referring it on, or deciding no action is required.
Inform the person what you have done, or are doing.

If you can’t complete the process within 20 working days, you should:

Inform the person how long you expect to take
Update them on your progress.

Your obligations as an organisation

You have 2 key obligations under the Protected Disclosures Act:

to act as a receiver
to uphold the protections of the Act.

Public sector organisations have other obligations as well.

Acting as a receiver

You must be able to receive and deal with protected disclosures from people in your organisation. The Ombudsman has produced Guidance for Receivers that sets out these obligations. If you have a question about acting as a receiver that is not covered by the our guidance, you are able to contact us free of charge for advice.

Upholding the protections of the Act

If someone makes a protected disclosure about your organisation, you must not retaliate against them. You also must not treat anyone less favourably if you think they have made a disclosure.

If you retaliate against an employee for making a protected disclosure, they may raise a personal grievance under the Employment Relations Act 2003.

If you treat someone worse because you believe they made a protected disclosure, or are associated with a person who has made a protected disclosure, you have breached the Human Rights Act. You may be liable to litigation before the Human Rights Review Tribunal. This section applies to disclosers who are not employees, such as contractors, volunteers, and board members.

If someone makes a disclosure to you, you must avoid identifying them. There are some exceptions, but by breaching obligation you are interfering with their privacy. Your organisation may be investigated by the Privacy Commissioner and face litigation before the Human Rights Review Tribunal.

Public sector organisations must have internal procedures

Public sector organisations must develop procedures for receiving and dealing with protected disclosures, and to make these available to their staff. The Ombudsman has published a guide for organisations on developing Protected Disclosures policies and procedures, but if you have a question about something that isn’t covered by the guide you can contact us to request information and guidance.

While private sector organisations aren’t legally required to develop internal procedures or policies, establishing internal procedures or policies for protected disclosures can help reduce the risk of something going wrong if you receive a protected disclosure.

Ombudsman’s role

For all organisations

We have a number of functions under the Protected Disclosures Act, including:

Giving guidance about the Protected Disclosures Act to any person, including receivers; and
Receiving and referring protected disclosures.

For public sector organisations

The Ombudsman has additional roles under the Act in relation to public sector organisations, including:

Investigating disclosures about agencies within our jurisdiction;
Investigating complaints about how agencies within our jurisdiction handle disclosures;
Requesting information about internal procedures;
Escalating protected disclosures to a Minister;
Taking over or assisting with some investigations;
Reviewing and guiding protected disclosure investigations; and
Receiving reports on some investigations.

What we do

Provide information and guidance

One of the Ombudsman’s key roles under the Protected Disclosures Act is to provide information and guidance to people and to organisations about the Act, including:

How to make a disclosure;
Who can receive a disclosure, including appropriate authorities;
How the Act provides legal protection to people who have made disclosures;
Best practice in receiving and dealing with disclosures.

We also publish guides on the Protected Disclosures Act.

If you want specific information and guidance on the Protected Disclosures Act, you can contact us at any time.

Receive and refer disclosures

The Ombudsman is an appropriate authority under the Act. This means we can receive a protected disclosure about your organisation. However, we can only investigate disclosures about the public sector. If we aren’t able to investigate a disclosure we may refer it either to the head of your organisation, or to another appropriate authority.

What we do for public sector organisations

Investigate some disclosures

The Ombudsman can investigate protected disclosures about the public sector, but we can only investigate under the same rules and limits as other types of complaints. This means that we can’t investigate protected disclosures about Ministers, MPs, court decisions, lawyers advising the Government, trustees of a trust, or disclosures about certain agencies (such as Police, NZDF or agencies of the New Zealand Intelligence Community).

Investigate complaints about how you’ve handled disclosures

Decisions made about disclosures by public sector organisations are administrative decisions, which fall under the Ombudsman Act. This means we can investigate complaints about how you have handled protected disclosures, and determine whether your process was unfair or unreasonable.

Request information about internal procedures

We can request information about your internal procedures for dealing with protected disclosures, a copy of those procedures and information about how those procedures operate. This applies to all organisations except for the New Zealand Defence Force or intelligence and security agencies. However, only public sector organisations are obliged to comply with such a request.

Escalate a protected disclosure to a Minister or investigate disclosure

If we believe that you have not followed the guidance for receivers or have failed to address serious wrongdoing, we can escalate the disclosure to a Minister. Before we escalate, we:

make sure the person who made the disclosure consents; and
consult with the Minister.

If you are a public sector organisation and we believe that you have not followed the guidance for receivers, or have failed to address serious wrongdoing, we can investigate if the discloser consents.

Whenever we escalate or investigate a disclosure, we promptly notify other authorities or organisations that are investigating the disclosure.

Take over some investigations or investigate together

If we believe your public sector organisation has received a disclosure and has not followed the guidance for receivers under section 13 of the Act, or has failed to address serious wrongdoing, we can assist you to investigate it. Before we do, we will make sure:

the person who made the disclosure consents
your organisation consents.

We may otherwise decide to take over the investigation if the person who made the disclosure consents.

Review and guide investigations

We can review and guide your public sector agency on an investigation of a protected disclosure. We can choose to review and guide an investigation at our discretion, or if you ask us to.

Receive reports on some investigations

We can get reports about investigations from the investigating agency when:

we’ve escalated a disclosure to a Minister
taken over an investigation or investigated together with a public sector organisation, or
otherwise provided information and guidance.

Guides

Protected disclosures – guidance on internal policies and procedures

If your organisation is looking to encourage an open reporting culture, or is currently grappling with how to handle a protected disclosure by one of your employees about serious wrongdoing in your workplace, this guide can help you develop internal policies and procedures for dealing with protected disclosures.

Protected Disclosures (Protection of Whistleblowers) Act 2022 – guide for Ministers

This guide provides information and guidance for Ministers who may receive protected disclosures.