Whistleblower Legislation Updated: Amendment to the Protected Disclosures Act 2000 

The Protected Disclosures Amendment Act 2009

An amendment to the Protected Disclosures Act 2000 ("Act") came into force on 6 May this year.  The amendments expand eligibility for protection under the Act and expand the role provided by the Ombudsmen.  This LGLaw will provide an update as to where these amendments sit in relation to the Act. 

Protected Disclosures

Under the Act an employee of a public sector organisation ("PSO"), which includes local authorities and Council controlled organisations, who discloses information about a serious wrongdoing by that PSO is protected from civil or criminal liability that might arise from such a disclosure and from retaliatory action against the employee that might affect his or her employment relationship.

Serious wrongdoing under the Act includes unlawful or irregular use of funds or resources; conduct that risks public health and safety; conduct that risks the maintenance of law; conduct that constitutes an offence; and oppressive, improper discriminatory conduct, gross negligence or gross mismanagement by a public official.

Protection under the Act applies where an employee has information about a serious wrongdoing; a reasonable belief that the information is true or likely to be true; the employee wishes to have the matter investigated; and desires protection under the Act.  The amendments introduced expand the definition of an employee to include any volunteers in a workplace and members of the governing board or body of a PSO.  The latter category would include elected members of a local authority.  The amendment also extends protection to those who volunteer supporting information in respect of a protected disclosure made by another person.

Procedure to be followed

To prevent possible abuses of information disclosure the Act requires disclosure by an employee to follow the internal procedures of the PSO.  All PSOs are required to establish internal procedures to address the receipt of and dealing with information about serious wrongdoing in or by the PSO.  Where a PSO has not created internal procedures then the provisions of the Act apply by default.  The default position requires a disclosure to be made to the head or deputy head of the organisation.  The matter can also be escalated to an "appropriate authority" if the employee considers the head of the PSO may be involved in the serious wrongdoing.  Appropriate authorities are defined in the Act and include the Commissioner of Police and the Ombudsmen.

The Act provides a tiered framework to address disclosure of information of serious wrongdoing:

• first, an employee is required to make a disclosure in accordance with internal procedures.  If the PSO has no internal procedures the matter must be disclosed to the head or deputy head of the PSO;
• secondly, escalation to the head or deputy head of an organisation.  This occurs where the employee reasonably believes a person appointed under the internal procedures to receive such disclosures may be involved in the serious wrongdoing;
• thirdly, escalation to an "appropriate authority" occurs where the employee reasonably believes the head of the PSO may be involved in the serious wrongdoing; or the circumstances justify immediate disclosure to an appropriate authority; or the PSO has not undertaken action within 20 working days;
• fourth, escalation to the Ombudsmen or a Minister of the Crown where the employee has already made a disclosure in accordance with the Act, the employee continues to believe in the truth of the information and the employee believes on reasonable grounds that the person or appropriate authority to whom the disclosure was made has decided not to investigate, or does not make progress within a reasonable time or having investigated, has not taken any action in respect of the matter.

Role of Ombudsmen

Under the Act the Ombudsmen is to provide information to any employee considering making a disclosure information about the Act.

The amendments introduce new functions for the Ombudsmen.  The Ombudsmen can now:

• escalate a disclosure with the consent of the disclosing employee at the first, second or third tier of the framework;
• take over or undertake an investigation in conjunction with a PSO where the person or appropriate authority to whom the disclosure was made has decided not to investigate, or does not make progress within a reasonable time or having investigated has not taken any action in respect of the matter;
• review an investigation and or guide an investigation undertaken by a PSO; and
• exercise functions and powers of the Ombudsmen under the Ombudsmen Act 1975 in respect of an investigation.

Other Matters

The amendment also allows for information requests under the Local Government Official Information and Meetings Act 1987 to be refused where the information may identify who made a protected disclosure. 

If you require any further information in relation to the Act or the recent amendment please contact us.

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Last updated: 8 June 2009

The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.