Protected Disclosures Act 2022: Has your organisation adapted?

New Zealand remains one of the least corrupt countries of the world. Having ranked equal with Denmark in the global anti-corruption rankings, we have plenty to be proud about for our little corner of the world. This position was further strengthened recently when the Protected Disclosures Act (“PDA”) 2000 was replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022. The new Act extends the definition of serious wrongdoing, enables a discloser to report serious wrongdoing to an appropriate authority, specifies what a receiver of a disclosure should do, and clarifies the potential forms of adverse conduct disclosers may face.

These changes appear common sense at face value – the Government’s appreciation for whistleblowers’ role in society continues to increase and demonstrates the societal good our law makers had in mind when passing this bill. However, although it is easy to appreciate and understand the need for change, how an agency should go about implementing the changes requires some pragmatic solutions to address these changes and ultimately help to keep your people safe.

What has changed?

The revised Act was introduced in 2022 to ultimately provide individuals with greater protection as a discloser. Six key areas have been addressed and the changes:

1. extend the definition of ‘serious wrongdoing’ to cover private sector use of public funds and authority, and behaviour that is a serious risk to the health and safety of any individual
2. enable people to report serious wrongdoing directly to an appropriate authority at any time
3. clarify the ability of the appropriate authority to decline or refer the disclosure
4. strengthen protections for disclosers by specifying what a receiver of a disclosure should do
5. clarify the potential forms of adverse conduct disclosers may face
6. clarify internal procedures for public sector organisations and requires them to state how they will provide support to disclosers.

What does this mean for your organisation?

These changes are by no means insignificant, and in some cases may require an extensive overhaul of internal processes and policies to ensure alignment with the revised Act. As the potential recipient of a protected disclosure, there are some practical steps your organisation can take to effectively embed the Act into your agency and provide practical assistance and advice to disclosers.

Refresh and align your policies

The changes to the PDA should prompt a refresh of related policies. A Whistleblower Policy should detail who in the organisation a protected disclosure should be reported to, or outline the contact details for a third-party whistleblower service, and the process the organisation will follow if a disclosure is made. The policy should also include detail about the protections in place to keep the employee safe. For example, reference to the requirement to not retaliate, or threaten to retaliate, against the discloser or treat them less favourably than others. It is also important any impacted or related policies (eg, fraud, bullying, code of conduct) are reviewed at the same time, to ensure there’s no conflicting information or processes.

Establish your procedure for responding to protected disclosures

The new act provides guidance on what organisations should do if they receive a protected disclosure. The expectation is that organisations have 20 working days to respond. Actions from Section 13 of the Act include:

1. acknowledgment to the discloser the date the disclosure was received
2. consideration of the disclosure and whether it warrants investigation
3. checking with the discloser to see if the disclosure has been made elsewhere (and any outcome)
4. dealing with the matter by doing one or more of the following: investigating the disclosure, addressing any serious wrongdoing by acting or recommending action, referring the disclosure, or deciding that no action is required
5. inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter.

Organisations need to have a framework in place to be able to respond to requests within the expected timeframe. Such a framework should include investigation procedures and the roles and responsibilities for the individuals responding to the disclosure.

Tone at the top

Any changes to your internal policies and procedures in response to the revised Act need to be effectively communicated throughout your organisation, ideally through a top-down approach. The PDA addresses sensitive elements for both employers and employees, so it is important that a clear tone is set emphasising the seriousness and value your organisation places on making your people feel safe.

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