We are seeking feedback on what a new regime might look like.
The proposed reforms to the Protected Disclosures Act aim to create a clear legal framework for speaking up in the workplace. We invite you to be part of this critical conversation. Your feedback on the different options will help inform further policy development, and shape amendments to the Act.
What if we did nothing to the legislation?
The State Services Commission has issued model standards for the state sector which outline the minimum expectations on organisations to promote a ‘speak up’ culture, develop good processes, and keep people safe from reprisals or other punishment.
We could build on this through better communications, guidance and support for all organisations.
- Communications: Regularly promoting an 'if in doubt, speak up' message could help to reinforce the value of people raising issues about serious misconduct in the workplace.
- Guidance: Clearly setting out what the Act does – and doesn’t – could help people understand when and how to speak up.
- Support: Training and best practice guidelines could help employers develop effective and user-friendly procedures for people to raise concerns freely and without fear.
We think this approach would make the Act easier to understand and use. For example, around:
- What does – and does not – constitute serious wrongdoing
- What good organisational policies and procedures look like
- How, and when, to report concerns to an external authority
- The relationship between the Act and other workplace related legislation such as the Health and Safety at Work Act and Employment Relations Act
However, an approach that relies solely on better communications, guidance and support may not address the Act’s biggest weaknesses.
- The Act’s definition of serious wrongdoing does not clearly focus on the issues that pose the biggest threat to the public interest as it is:
- too narrow in some areas – for example, it does not explicitly cover corruption or misuse of funds in the private or not-for-profit sector
- too broad in other areas – for example, it covers ‘oppressive’ behaviour in the public sector, which could be used to further a personal grievance.
- The Act does not require all employers to have good procedures in place; nor does it require them to actually take action and investigate concerns.
- The Act does not clearly forbid employers from dismissing or mistreating a person who speaks up; nor does it require them to proactively prevent this occurring.
- The Act does not allow people to report concerns to an external organisation first if they are unsure how to speak up inside their workplace, or too scared to do so.
We have outlined five possible futures and invite your feedback on the pros and cons of different approaches.
- Option 1: Build strong foundations
- Option 2: Allow people to report concerns to an appropriate authority at any time
- Option 3: Establish stronger oversight
- Option 4: Monitor the public sector
- Option 5: Monitor all organisations
All five options include a combination of guidance and targeted improvements to the law that aim to:
- ensure a clear focus on the issues that pose the biggest threats to the public interest
- build strong foundations and encourage open organisational cultures
- set out clear definitions and rules to make the law easy to use and understand
- promote fairness by ensuring everyone is treated with respect throughout the process.
As shown in the diagram, the options build on one another so that the proposals in the first carry through to the fifth. These range from the minimum changes required to make the Act fit-for-purpose through to more significant changes that increase the level of oversight to support people to use and understand the law.
Importantly, while we are seeking feedback on which, if any, of the five options are preferred, none are set in stone. They are intended as a basis for discussion about the pros and cons of each and what may or may not work in practise.
Your feedback will inform our final proposals to the Minister, which will include details for how the proposed changes will be implemented to ensure they achieve their desired impact.
This option aims to build strong foundations by removing confusion and ensuring organisations have good procedures in place that encourage staff to speak up about potential failings or misconduct in their workplace.
Providing information and guidance
The State Services Commission, as the administrator of the Act, could issue guidance to make it easier for people to understand what is covered by the Act, and how to use it. This could cover:
- when to make a disclosure under the Act
- what does and does not count as'serious wrongdoing' and where people can go to for complaints not covered by the Act
- which appropriate authority to go to, and when
- what protections are available to people who ‘speak up’
- how to ensure everyone is treated fairly, including the person suspected of wrongdoing
- what compensation is available for those who suffer retaliation for speaking up, and how to access it.
Improving the definition of serious wrongdoing
Serious wrongdoing could include:
- unlawful, corrupt or irregular use of money or resources
- conduct that poses a serious risk to public health, safety, the environment or the maintenance of law
- a criminal offence
- grossly negligent conduct or gross mismanagement by a public official
This proposed definition would be:
- Broadened to include concerns about corrupt or irregular use of money or resources in the private and not-for-profit sector.
- Narrowed to exclude conduct relating to workplace bullying and harassment (i.e. by reframing or removing references to 'oppressive and improperly discriminatory' behaviour).
The threshold for making a protected disclosure would be lowered by requiring people to have ‘reasonable grounds to suspect’ serious wrongdoing is being committed, rather than ‘reasonable grounds to believe’. This would aim to encourage people to speak up when they suspect something might be wrong, but do not have enough information to be 100 per cent sure.
To avoid doubt, we could include a section in the Act that makes it clear that people cannot seek the protections under the Act for concerns that relate solely to a personal employment grievance or dispute.
Why are we proposing to remove references to bullying and harassment from the definition of serious wrongdoing?
During targeted consultation, we heard that the inclusion of 'oppressive and improperly discriminatory' behaviour in the definition of serious wrongdoing is used to raise concerns about individual cases of workplace bullying and harassment.
However, there are other, much better, avenues to deal with these issues. The Employment Relations Act provides a complaints mechanism via the well-established personal grievance process. The Health and Safety at Work Act, which was passed after the Protected Disclosures Act, provides another mechanism for people to raise concerns about the health and safety of workers and workplaces.
The only benefit of using the Protected Disclosures Act over these other mechanisms are the confidentiality provisions. However, these would not necessarily apply in the case of bullying and harassment because of the exemptions under the Act, which allow the identity of a person to be disclosed if it’s essential to the principles of natural justice. In other words, the person who is alleged to be committing this sort of behaviour has the right to know who has made the complaint.
Targeted consultation also showed us that the overlaps between these three complaints mechanisms is confusing for both individuals and organisations. The proposed changes therefore aim to clarify the boundaries between different pieces of legislation.
Strengthening obligations for organisations
All organisations and appropriate authorities – across the public, private and not-for-profit sectors – could be required to have good procedures in place for receiving and handling information about alleged serious wrongdoing, which cover:
- how someone can report a concern internally and externally
- the protections available (e.g. confidentiality and wraparound support)
- how disclosures will be handled (e.g. how it will be recorded and investigated, and how the person will be kept informed of progress)
- how the organisation will ensure everyone is treated fairly throughout the process
- how the organisation will promote the policy to their staff.
In addition, all organisations could be legally required to take action and investigate information about alleged wrongdoing, and report back on the outcome.
These principles could be accompanied by guidance on what model procedures and policies look like. Organisations would have discretion on how to tailor these to their own circumstances.
Enhancing protections for people who ‘speak up’
The Act could more clearly link to the relevant section of the Human Rights Act, which prohibits a person from being mistreated for speaking up if their identity becomes known.
The legislation could also list forms of retaliation and require organisations to provide tailored support to minimise the risk of these occurring. This list could include (but is not limited to) any of the following:
- Failure to promote
- Blocking access to resources
- Disciplinary sanction
- Bullying or harassment
Clarifying the list of appropriate authorities people can report to
The 'head of every public sector organisation' could be removed as an authority to lessen confusion around who to go to, for what.
There does not appear to be a strong rationale for someone to go to the head of a public sector organisation rather than one of the named authorities which have a clear remit to investigate the types of wrongdoing covered by the Act.
The appropriate authorities are:
- Commissioner of Police.
- Controller and Auditor-General.
- Director of the Serious Fraud Office.
- Inspector-General of Intelligence and Security.
- The Ombudsman.
- Parliamentary Commissioner for the Environment.
- Independent Police Conduct Authority.
- State Services Commissioner.
- Health and Disability Commissioner.
- Head of every public sector agency.
- Heads of some private sector professional organisations who have disciplinary powers over members.
Clarifying the path to compensation in the event of retaliation
The Act would make existing arrangements for compensation clearer in the Act so people know what compensation they can seek, and how to access it, if they suffer harm or retaliation as a result of speaking up. For example:
- Raising a personal grievance against their employer if they believe they were unfairly dismissed or disadvantaged in some way
- Making a complaint to the Human Rights Commission for being victimised if they believe they have been treated less favourably than others in similar circumstances.
We think this option will have the following benefits:
✔ Better information and guidance would raise awareness and make it easier for people to understand and use the Act.
✔ Changes to the definition of serious wrongdoing would help expose the most serious threats to the public interest by broadening it out to the private and not-for-profit sectors and narrowing it down to exclude personal employment matters.
✔ Changing when the protections apply would encourage people to speak up if they have legitimate concerns and suspect serious wrongdoing, but do not have enough information to prove it.
✔ Requiring all organisations to have fit-for-purpose procedures in place for handling disclosures and proactively supporting whistleblowers would make it easier for people to raise issues without fear of retaliation.
✔ Changing the list of appropriate authorities would ensure there is a clear link between the types of wrongdoing the Act is committed to exposing and the organisations with the responsibility to address them.
We think this option will have the following costs:
✘ Fulfilling new requirements may be difficult and costly for employers - particularly smaller organisations - because of a lack of resources, skills and know-how.
✘ People would still be required to report all concerns inside their workplace first, which may prevent people from speaking up.
✘ The list of “appropriate authorities” may still be confusing to navigate and there would be no single source of advice for people working in the private and not-for-profit sector.
This option would include all the improvements described under option 1, but go one step further in making it easier for people to report concerns to an appropriate authority at any time.
Reporting directly to an appropriate authority
People would no longer need to meet a certain set of criteria before reporting a concern to one of the appropriate authorities – they would be able to go to one of these organisations at any time, if they fear speaking up inside their workplace, or don’t know how to.
Appropriate authorities would be able to refer cases to one another or back to the organisation concerned, if they believe another organisation is better placed to investigate the alleged wrongdoing.
We think this option will have the following benefits compared to option 1:
✔ People would be able to report to an appropriate authority at any time, if internal procedures are inadequate or they fear reprisal.
We think this option will have the following costs compared to option 1:
✘ Organisations may find it difficult to deal with people reporting concerns outside the workplace without first being given an opportunity to investigate and respond.
✘ Organisations may rely on appropriate authorities to avoid costly internal investigations, seeing them as an “easy alternative”. This would increase the risk of external processes substituting for poor organisational practice.
✘ Appropriate authorities are likely to experience a higher volume of complaints, which will require more resources and funding for investigations.
✘ People reporting to appropriate authorities would not receive the same wrap-around care as those reporting inside the workplace.
This option would include all the improvements described under option 2 and create a single port of call for advice on when, and how, to use the Act.
Establish stronger oversight
There would be a single port of call for people working in the public, private and not-for-profit sector to go to for advice on raising a concern.
This oversight body, or bodies, could perform a ‘triage’ function. People would be able to report directly to them if they do not know how to, or do not want to, report concerns inside their workplace or to one of the named external authorities.
This organisation could then direct the information to the most appropriate organisation for investigation and keep the person up to date on progress.
The oversight body, or bodies, could also dedicate resource to supporting and promoting good
practice through training and other tools.
We think this option will have the following benefits compared to option 2:
✔ Increasing oversight would help to ensure all organisations have good procedures in place.
✔ The oversight body, or bodies, would provide advice, support and information to make it easier for people to navigate the system and ensure that concerns are directed to the right organisation the first time.
We think this option will have the following costs compared to option 2:
✘ Increasing oversight will introduce additional costs to the system and may add another layer of duplication and complexity. This would risk making the new system as confusing as the current system.
This option would include all the improvements described under option 3 and introduce new reporting obligations for all public sector organisations to promote transparency and good practice.
Introduce reporting requirements
All public sector organisations would be required to collect information relating to protected disclosures and report these to the oversight body – for example:
• The number and type of disclosures made
• The number of investigations that have been triggered or are underway.
The oversight body could receive and collate these reports in the public sector to improve transparency and identify key issues and trends to direct improvement efforts.
This option would need to ensure that confidentiality and privacy considerations are addressed appropriately.
We think this option will have the following benefits compared to option 3:
✔ Increase transparency and provide a fuller picture of what is happening across the public sector. This would help identify areas for improvement.
✔ Help incentivise good practice in the public sector.
We think this option will have the following costs compared to option 3:
✘ Reporting obligations for the public sector would impose additional costs. This may disproportionately affect smaller agencies and organisations.
✘ Collecting reports from the public sector would require new systems and processes for monitoring compliance.
✘ Organisations may be disincentivised to publish honest accounts of the number of disclosures they have received because of the potential reputational damage.
This option would include all the improvements described under option 4 and introduce new reporting obligations for all organisations to promote transparency and good practice across the board.
Introducing reporting requirements
All organisations would be required to collect information relating to protected disclosures and report these to the oversight body – for example:
- The number and type of disclosures made
- The number of investigations that have been triggered or are underway.
The oversight body could receive and collate these reports to improve transparency and identify key issues and trends to direct improvement efforts.
This option could include an exemption for small businesses and community, voluntary, and not-for-profit organisations.
This option would need to ensure that confidentiality and privacy considerations are addressed appropriately.
We think this option will have the following benefits compared to option 4:
✔ Increase transparency and provide a fuller picture of what is happening across the whole system. This would help identify areas for improvement.
✔ Help incentivise good practice across all organisations.
We think this option will have the following costs compared to option 4:
✘ Reporting obligations for all organisations would impose additional costs. This may disproportionately affect smaller organisations.
✘ Collecting reports from every employer would require extensive systems and processes for monitoring compliance.
✘ Organisations across the private and not-for-profit sectors may be disincentivised to publish honest accounts of the number of disclosures they have received because of the potential reputational damage.
Commissioner of Police.Controller and Auditor-General.Director of the Serious Fraud Office.Inspector-General of Intelligence and Security.The Ombudsman.Parliamentary Commissioner for the Environment.Independent Police Conduct Authority.Solicitor-General.State Services Commissioner.Health and Disability Commissioner.Head of every public sector agency.Heads of some private sector professional organisations who have disciplinary powers over members.
The oversight body could receive and collate these reports to improve transparency and identify key issues and trends to direct improvement efforts.This option could include an exemption for small businesses and community, voluntary, and not-for-profit organisations.This option would need to ensure that confidentiality and privacy considerations are addressed appropriately.