Protected Disclosures (Protection of Whistleblowers) Act 2022

1: Title
This Act is the Protected Disclosures (Protection of Whistleblowers) Act 2022.
2: Commencement
This Act comes into force on 1 July 2022.
1: Preliminary provisions
3: Purpose
The purpose of this Act is to promote the public interest—
a: by facilitating the disclosure and timely investigation of serious wrongdoing in or by an organisation; and
b: by protecting the people who disclose in accordance with this Act. 2000 No 7 s 5
4: Interpretation
In this Act, unless the context otherwise requires,— appropriate authority section 25 classified information section 78AA discloser section 8 environment section 2 intelligence and security agency section 4 intelligence and security information
a: is classified information; or
b: relates to the activities of an intelligence and security agency internal procedures international relations agency
a: the Department of the Prime Minister and Cabinet:
b: the Ministry of Foreign Affairs and Trade:
c: the Ministry of Defence:
d: the New Zealand Defence Force international relations information
a: is about the international relations of the Government of New Zealand; and
b: is held by an international relations agency; and
c: is not classified information; and
d: does not relate to the activities of an intelligence and security agency officer of Parliament Ombudsman Ombudsmen Act 1975 section 28
a: any person holding office under an Ombudsman to whom any of the powers of an Ombudsman have been delegated under section 28
b: any person whom the Chief Ombudsman has appointed to perform an Ombudsman's functions under this Act organisation
a: corporate or unincorporate:
b: in the public sector or in the private sector protected disclosure section 9 public sector organisation
a: an organisation named or specified in Schedule 1
b: an organisation (except for an officer of Parliament) named in Schedule 1
c: a local authority or public body named or specified in Schedule 1
d: the Office of the Clerk of the House of Representatives:
e: the Parliamentary Service:
f: an intelligence and security agency:
g: a council-controlled organisation within the meaning of section 6 receiver
a: the organisation concerned; or
b: an appropriate authority retaliate section 21 serious wrongdoing section 10 2000 No 7 s 3
5: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
6: Act binds the Crown
This Act binds the Crown. 2000 No 7 s 4
2: Key concepts and what to do
1: Key concepts
7: Overview
1: The following flowchart gives an overview of how this Act applies to a discloser: Protections under this Act
2: A discloser is entitled to protection under this Act for a protected disclosure as follows:
a: the receiver must use their best endeavours to keep the discloser’s identity confidential (with certain exceptions, see section 17
b: there can be no retaliation against the discloser’s employment ( see section 21
c: the discloser (and their relatives and associates) cannot be treated less favourably ( see section 22
d: the discloser has an immunity for the disclosure in court or disciplinary proceedings ( see section 23
e: the organisation cannot contract out of this Act or have internal procedures that are inconsistent with this Act ( see section 24
f: a public sector organisation must provide practical assistance and advice to the discloser in relation to serious wrongdoing in or by that organisation ( see section 29
3: The disclosure should be considered and dealt with in a timely way ( see section 13
4: A person who discloses information in support of, or relating to, a protected disclosure is also entitled to protection under this Act ( see section 12
5: This section is only a guide to the general scheme and effect of this Act.
8: Meaning of discloser
In this Act, discloser
a: an employee:
b: a homeworker within the meaning given in section 5
c: a secondee to the organisation:
d: engaged or contracted under a contract for services to do work for the organisation:
e: concerned in the management of the organisation (including, for example, a person who is or was a member of the board or governing body of the organisation):
f: a member of the Armed Forces (in relation to the New Zealand Defence Force):
g: a volunteer working for the organisation without reward or expectation of reward for that work. 2000 No 7 s 3(1)
9: Meaning of protected disclosure
A disclosure of information is a protected disclosure
a: believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the discloser’s organisation; and
b: discloses information about that in accordance with this Act; and
c: does not disclose it in bad faith. 2000 No 7 ss 6 20
10: Meaning of serious wrongdoing
In this Act, serious wrongdoing
a: an offence:
b: a serious risk to—
i: public health; or
ii: public safety; or
iii: the health or safety of any individual; or
iv: the environment:
c: a serious risk to the maintenance of law, including—
i: the prevention, investigation, and detection of offences; or
ii: the right to a fair trial:
d: an unlawful, a corrupt, or an irregular use of public funds or public resources:
e: oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement, and is done (or is an omission) by—
i: an employee (if the organisation is a public sector organisation):
ii: a person performing (or purporting to perform) a function or duty or exercising (or purporting to exercise) a power on behalf of a public sector organisation or the Government. 2000 No 7 s 3(1)
2: What to do (disclosers and receivers)
11: Discloser’s entitlement to protection
1: A discloser is entitled to protection under this Act for a protected disclosure made (in accordance with this section) to their organisation or to an appropriate authority.
2: A discloser is entitled to protection for a protected disclosure made to their organisation if it is made—
a: in accordance with any internal procedures; or
b: to the head or a deputy head of the organisation.
3: A discloser is entitled to protection for a protected disclosure made to an appropriate authority at any time. (This applies whether or not the discloser has also made the disclosure to their organisation or to another appropriate authority.)
4: A discloser is entitled to protection even if—
a: they are mistaken and there is no serious wrongdoing; or
b: they do not refer to the name of this Act when making the disclosure; or
c: they technically fail to comply with this section or section 14
d: they also make the disclosure to another person, as long as they do so—
i: on a confidential basis; and
ii: for the purposes of seeking advice about whether or how to make a protected disclosure in accordance with this Act.
5: If the disclosure is or includes intelligence and security information or international relations information, this section is subject to sections 25(2) 27 28 2000 No 7 ss 6(3) 6A 7 8 9
12: Supporting information
1: Another discloser who discloses information in support of, or relating to, a protected disclosure is also entitled to protection under this Act if the discloser—
a: does not disclose in bad faith; and
b: discloses to their organisation, or to an appropriate authority, in accordance with section 11
2: The protections under this Act apply, with all necessary modifications, to that discloser as if the information were a protected disclosure. 2000 No 7 s 19A
13: Guidance: what receiver should do
1: Within 20 working days of receiving a protected disclosure, the receiver of the disclosure should— Acknowledge receipt
a: acknowledge to the discloser the date the disclosure was received (and, if the disclosure was made orally, summarise the receiver’s understanding of the disclosure); and Consider
b: consider the disclosure and whether it warrants investigation; and Check
c: check with the discloser whether the disclosure has been made elsewhere (and any outcome); and Deal with
d: deal with the matter by doing 1 or more of the following:
i: investigating the disclosure:
ii: addressing any serious wrongdoing by acting or recommending action:
iii: referring the disclosure under section 16
iv: deciding that no action is required (under section 15 Inform discloser (with reasons)
e: inform the discloser (with reasons) about what the receiver has done or is doing to deal with the matter in accordance with paragraph (d).
2: However, when it is impracticable to complete these actions within 20 working days, the receiver should do the actions described in subsection (1)﻿(a) to (c) within 20 working days and then should— Inform discloser
a: inform the discloser how long the receiver expects to take to deal with the matter; and Update
b: appropriately update the discloser about progress; and Deal with
c: deal with the matter as described in subsection (1)﻿(d); and Inform discloser (with reasons)
d: inform the discloser (with reasons) about
3: This section is guidance only. It does not confer a legal right (apart from the entitlements under sections 14 32 33 2000 No 7 s 9
14: Discloser’s entitlement to disclose further
1: This section applies if a discloser believes on reasonable grounds that the receiver of a protected disclosure—
a: has not acted as it should under section 13
b: has not dealt with the matter so as to address the serious wrongdoing.
2: The discloser is entitled to protection under this Act for a protected disclosure made to a Minister.
3: However, the discloser is entitled to protection under this Act for a protected disclosure made to the Speaker (not a Minister) if the disclosure relates to serious wrongdoing in or by any of the following:
a: the office of an officer of Parliament:
b: the Office of the Clerk of the House of Representatives:
c: the Parliamentary Service.
4: This section does not limit—
a: section 11(3)
b: section 32
5: However, if the disclosure is or includes intelligence and security information or international relations information, this section is subject to sections 27 28 2000 No 7 s 10
15: Receiver may decide no action is required
1: A receiver of a protected disclosure may decide that no action is required and, if so, must inform the discloser (with reasons).
2: Reasons that may be appropriate for deciding that no action is required include that—
a: the requirements of sections 8 to 10
b: the length of time between the alleged serious wrongdoing and the disclosure makes an investigation impracticable or undesirable:
c: the matter is better addressed by other means.
16: Receiver may refer disclosure
1: A receiver that is the organisation concerned may refer a protected disclosure to an appropriate authority.
2: A receiver that is an appropriate authority may refer a protected disclosure to—
a: the organisation concerned; or
b: another appropriate authority.
3: Before referring a protected disclosure, the receiver must consult the discloser and the intended recipient of a referral.
4: The organisation or authority that has received a referral becomes the receiver of the disclosure and this Act applies accordingly.
5: If an appropriate authority refers a disclosure to the organisation concerned, the organisation must inform the authority about what the organisation has done or is doing to deal with the matter (at the same time as the organisation informs the discloser of that ( see section 13(1)﻿(e) or (2)﻿(d)
6: A disclosure may be referred on more than 1 occasion.
7: The Inspector-General of Intelligence and Security may refer a disclosure under this section in a way that is consistent with section 27(1) 2000 No 7 s 16
3: Protections
Confidentiality
17: Confidentiality
1: Every receiver of a protected disclosure must use their best endeavours to keep confidential information that might identify the discloser.
2: However, a receiver need not keep a discloser’s identity confidential if—
a: the discloser consents to the release of the identifying information; or
b: there are reasonable grounds to believe that the release of the identifying information is essential—
i: for the effective investigation of the disclosure; or
ii: to prevent a serious risk to public health, public safety, the health or safety of any individual, or the environment; or
iii: to comply with the principles of natural justice; or
iv: to an investigation by a law enforcement or regulatory agency for the purpose of law enforcement.
3: Before releasing identifying information for a reason described in subsection (2)﻿(b),—
a: if the release is for the reason described in subsection (2)﻿(b)﻿(i) or (iii), the receiver must consult the discloser about the release; or
b: if the release is for the reason described in subsection (2)﻿(b)﻿(ii) or (iv), the receiver must, if practicable, consult the discloser about the release.
4: After releasing identifying information for a reason described in subsection (2)﻿(b), the receiver must inform the discloser.
5: Anyone may seek information and guidance from an Ombudsman about the duty of confidentiality in this section.
6: In this section, law enforcement or regulatory agency law enforcement agency section 3(1)
7: See section 27 2000 No 7 s 19(1), (3)
18: Protecting confidentiality under Privacy Act 2020
1: The release of information that might identify the discloser is an interference with the privacy of an individual for the purposes of Part 5 section 17
2: Part 5
a: a discloser may complain under section 70 Part 5
b: the receiver has the onus of proving that section 17(2) section 101
c: Part 5 section 27
19: Protecting confidentiality by withholding official information
A receiver must refuse a request for information under the Official Information Act 1982 Local Government Official Information and Meetings Act 1987 2000 No 7 s 19(2) Obligation not to retaliate or treat less favourably
20: Obligation not to retaliate or treat less favourably
1: Employers must not retaliate against a discloser who is an employee: see section 21
2: A person must not treat another less favourably because of a protected disclosure: see section 22
21: No retaliation by employer
1: An employer must not retaliate, or threaten to retaliate, against an employee because the employee intends to make or has made a protected disclosure.
2: If an employer retaliates, or threatens to retaliate, against an employee in breach of subsection (1), the employee has a personal grievance under section 103(1)﻿(k)
3: Part 9
4: For the purposes of this section and section 20(1) employee section 6 employer section 5 retaliate
a: doing any of the following:
i: dismissing the employee:
ii: refusing or omitting to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances:
iii: subjecting the employee to any detriment or disadvantage (including any detrimental or disadvantageous effect on the employee’s employment, job performance, or job satisfaction) in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment or disadvantage:
iv: retiring the employee, or requiring or causing the employee to retire or resign:
b: organising to do anything described in paragraph (a). 2000 No 7 s 17
22: No victimisation
1: A person ( A B
a: B (or a relative or associate of B)—
i: intends to make, or has made, a protected disclosure under this Act; or
ii: has encouraged another person to make a protected disclosure; or
iii: has given information in support of, or relating to, a protected disclosure; or
b: A believes or suspects that B (or a relative or associate of B) intends to do, or has done, anything described in paragraph (a).
2: Subsection (1) does not apply if B knowingly made a false allegation or otherwise acted in bad faith.
3: A breach of subsection (1) is unlawful under section 66(3) 1993 No 82 s 66 No retaliation in court or disciplinary proceedings
23: Immunity from civil, criminal, and disciplinary proceedings
1: Neither a discloser who makes a protected disclosure nor a receiver who refers a protected disclosure under section 16
2: Subsection (1) applies despite any prohibition of or restriction on the disclosure of information under any legislation, rule of law, agreement, contract, internal procedure, oath, or practice. 2000 No 7 s 18 No contracting out
24: No contracting out
1: This Act applies despite any agreement, contract, or internal procedure.
2: A provision in any agreement, contract, or internal procedure has no effect if it apparently requires a person to do any of the following:
a: not to disclose serious wrongdoing that is or could be a protected disclosure:
b: not to disclose information that could support, or relate to, a protected disclosure:
c: to withdraw a protected disclosure:
d: to abandon a protected disclosure:
e: to make a disclosure of serious wrongdoing in a way that is inconsistent with this Act. 2000 No 7 ss 6A(2) 23
4: Appropriate authorities, special rules for certain organisations, Ombudsmen’s role, etc
1: Appropriate authorities
25: Meaning of appropriate authority
1: In this Act, appropriate authority
a: includes the head of any public sector organisation; and
b: includes any officer of Parliament; and
c: includes (as examples) the persons or bodies listed in the second column of Schedule 2
d: includes the membership body of a particular profession, trade, or calling with the power to discipline its members; but
e: does not include—
i: a Minister; or
ii: a member of Parliament.
2: However,—
a: the appropriate authority
b: the appropriate authority See
i: section 27(3)
ii: section 16(7)
iii: sections 14 27 2000 No 7 ss 3(1) 12(2)﻿(b) 13(2)﻿(a)
26: Schedule 2 may be amended by Order in Council
1: The Governor-General, by Order in Council made on the recommendation of the Minister responsible for the administration of this Act, may amend Schedule 2
a: adding, deleting, or amending the name of an appropriate authority:
b: adding, deleting, or amending a description of the nature of concerns.
2: The Minister must not recommend that an order be made under subsection (1) unless the Minister has consulted the relevant appropriate authority.
3: An Order in Council made under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
2: Special rules for intelligence, security, and international relations information
27: Special rules for intelligence and security information
1: A person may only disclose intelligence and security information to someone who holds an appropriate security clearance and is authorised to have access to the information.
2: A discloser who has made, or is considering making, a protected disclosure that is or includes intelligence and security information may seek information and guidance from the Inspector-General of Intelligence and Security only (and not from an Ombudsman).
3: A discloser is entitled to protection under this Act for a protected disclosure made to the Prime Minister that—
a: is or includes intelligence and security information; and
b: relates to serious wrongdoing in or by the office of the Inspector-General of Intelligence and Security— and sections 11(4) 12
4: An intelligence and security agency, and any other public sector organisation that holds or has access to intelligence and security information, must—
a: have internal procedures that reflect subsections (1) to (3); and
b: apply sections 13 17 29
5: The Inspector-General of Intelligence and Security may disclose intelligence and security information disclosed or referred under this Act only in accordance with subpart 1
6: This section overrides section 17(5)
7: For the purposes of section 14(2) 2000 No 7 ss 12 14
28: Special rules for international relations information
1: An international relations agency must—
a: have internal procedures that reflect subsection (3); and
b: comply with section 29(2)﻿(d)
2: The Ombudsman may disclose international relations information only in accordance with the Ombudsmen Act 1975
3: For the purposes of section 14(2) 2000 No 7 ss 13 14
3: Special rules for all public sector organisations
29: Public sector organisations must have internal procedures
1: Every public sector organisation must have appropriate internal procedures.
2: The internal procedures must—
a: comply with the principles of natural justice; and
b: set out a process that is consistent with section 13
c: identify who in the organisation a protected disclosure of serious wrongdoing in or by that organisation may be made to; and
d: include, in relation to a protected disclosure of serious wrongdoing in or by that organisation,—
i: a reference to the requirement in section 21
ii: a reference to the requirement in section 22
iii: a description of the circumstances in which the disclosure may be referred under section 16
iv: a description of how the organisation will provide practical assistance and advice to disclosers (for example, by having a support person assess any risks to a discloser); and
v: a description of how the organisation will meet the duty of confidentiality in section 17
3: The organisation must publish widely (and republish at regular intervals)—
a: information about the existence of the internal procedures; and
b: adequate information about how to use the procedures. 2000 No 7 s 11
4: Ombudsmen’s role
30: Role of Ombudsmen in providing information and guidance
1: An Ombudsman may provide information and guidance to any person on any matter about this Act (either after a request or at the Ombudsman’s discretion).
2: If a discloser notifies an Ombudsman that the discloser has made, or is considering making, a protected disclosure, an Ombudsman must provide information and guidance to the discloser about the following (as relevant):
a: which disclosures are protected under this Act:
b: the persons to whom information may be disclosed under this Act:
c: how to disclose information in accordance with sections 11 12
d: a summary of the role of each appropriate authority:
e: the protections available under this Act and under the Human Rights Act 1993
f: how a disclosure may be referred under section 16
3: An Ombudsman may—
a: provide information and guidance to organisations and disclosers about the circumstances in which anonymous protected disclosures may be made; and
b: otherwise provide advice and assistance to organisations and other persons about the duty of confidentiality in section 17
4: This section does not apply to a disclosure that is or includes intelligence and security information (and section 27 2000 No 7 ss 6B 19(3)
31: Information about internal procedures
1: For the purpose of this Act, an Ombudsman may request 1 or more of the following from an organisation:
a: information about whether the organisation has established and published internal procedures; and
b: a copy of those procedures; and
c: information about how those procedures operate.
2: However, the Inspector-General of Intelligence and Security, and not an Ombudsman, has the power described in subsection (1) in relation to an intelligence and security agency.
3: An organisation is not required to comply with a request made under subsection (1) if it is not a public sector organisation. 2000 No 7 s 6C
32: Ombudsmen may escalate protected disclosure to Minister or investigate disclosure
1: An Ombudsman may, with the consent of a discloser who has made a protected disclosure in accordance with this Act to an organisation or another appropriate authority,—
a: refer the disclosure to a Minister if the Ombudsman considers, after consulting that Minister, that the receiver of the disclosure—
i: has not acted as it should under section 13
ii: has not dealt with the matter so as to address the serious wrongdoing; or
b: investigate the disclosure if the disclosure relates to serious wrongdoing in or by a public sector organisation and the Ombudsman considers that the receiver of the disclosure—
i: has not acted as it should under section 13
ii: has not dealt with the matter so as to address the serious wrongdoing.
2: Subsection (1) does not authorise an Ombudsman to act under that subsection if—
a: the disclosure relates to serious wrongdoing in or by the office of an officer of Parliament; or
b: the receiver is an officer of Parliament.
3: The Ombudsman must promptly notify a referral or an investigation under subsection (1) to any person that the Ombudsman understands may be investigating the disclosure.
4: A disclosure may be referred on more than 1 occasion.
5: This section does not apply if a disclosure is or includes intelligence and security information (and section 27
6: In relation to a disclosure that is or includes international relations information, an Ombudsman must comply with this section in a way that is consistent with section 28 2000 No 7 s 15
33: Ombudsmen may take over some investigations or investigate together with public sector organisation
1: This section applies to a protected disclosure relating to serious wrongdoing in or by a public sector organisation.
2: An Ombudsman may take over an investigation of a disclosure from a public sector organisation, or investigate a disclosure together with a public sector organisation, if—
a: the Ombudsman considers that the organisation—
i: has not acted as it should under section 13
ii: has not dealt with the matter so as to address the serious wrongdoing; and
b: the discloser who made the disclosure consents; and
c: in the case of an investigation together with a public sector organisation, the public sector organisation consents to the Ombudsman acting under this section.
3: However, this section does not apply to a disclosure that is or includes intelligence and security information (and section 27 2000 No 7 s 15A
34: Ombudsmen may review and guide investigations by public sector organisations
1: An Ombudsman may review and guide an investigation of a protected disclosure by a public sector organisation (either at the organisation’s request or at the Ombudsman’s discretion).
2: However, subsection (1) does not apply to a disclosure that is or includes intelligence and security information (and section 27
3: Subsection (1) does not authorise an Ombudsman to issue a direction to a public sector organisation requiring it to act in a particular manner in relation to an investigation. 2000 No 7 s 15B
35: Ombudsmen may receive reports on investigations and include information in annual report
1: The Ombudsmen may receive reports on the following investigations:
a: investigations referred under section 32
b: investigations in which an Ombudsman has acted under section 33
c: investigations in relation to which an Ombudsman has otherwise provided information or guidance under this Act.
2: The Ombudsmen may include in their annual report under section 29
a: current guidance issued by the Ombudsmen about this Act:
b: the number and types of information and guidance inquiries made to the Ombudsmen about the matters in this Act:
c: the number of protected disclosures made to the Ombudsmen:
d: the number of investigations undertaken or taken over by the Ombudsmen:
e: the number of investigations referred under section 32
f: the outcome of the matters referred to in paragraphs (b) to (e) (if known by the Ombudsmen). 2000 No 7 s 15C
36: Chief Ombudsman may appoint persons to perform Ombudsman’s functions under this Act
The Chief Ombudsman may, by notice, appoint a person to perform an Ombudsman’s functions under this Act. 2000 No 7 s 15D
37: Ombudsmen’s functions and powers
1: The functions and powers of Ombudsmen under the Ombudsmen Act 1975 section 13(3)
2: The Ombudsmen have the same powers in relation to investigating a protected disclosure made under this Act as Ombudsmen have in relation to a complaint under the Ombudsmen Act 1975
3: Sections 19 20 30 2000 No 7 s 15E
5: Other protections and privileges
38: Other protections not limited
This Act does not limit any statutory or other protection, privilege, immunity, or defence relating to the disclosure of information. 2000 No 7 s 21
39: Legal professional privilege
1: Nothing in this Act authorises a person to disclose information protected by legal professional privilege.
2: A disclosure of such information is not a protected disclosure. 2000 No 7 s 22
6: Consequential amendments and repeal
40: Consequential amendments
Amend the Acts specified in Schedule 3 2022-07-01 Employment Relations Act 2000 Human Rights Act 1993 Intelligence and Security Act 2017 Ombudsmen Act 1975
41: Repeal of Protected Disclosures Act 2000
The Protected Disclosures Act 2000 2022-07-01 Protected Disclosures Act 2000