Reporting Wrongdoing and Protected Disclosures Policy July 2022.pdf

Reporting Wrongdoing and
Protected Disclosures Policy

Type:

Policy
Policy owner:
DCE Enterprise Services
Date:

July 2022

Reporting Wrongdoing and Protected Disclosures Policy
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1. Statement/Intent
The Commission will ensure that consistent policies and practices exist and are applied for managing
disclosures that are made about wrongdoing in or by the Commission.
The Commission will ensure that employees who make disclosures about Serious Wrongdoing in or by
the Commission are protected in accordance with the provisions of the Protected Disclosures
(Protection of Whistleblowers) Act 2022 (the Act).
Some breaches of the Commission’s Corporate Policies, Code of Conduct, or Governance Manual will
come within the criteria of “Serious Wrongdoing” under the Protected Disclosures Act but others will
not.  The Commission encourages employees to report all suspected wrongdoing and, to the extent
practicable, will apply this policy to disclosures of wrongdoing that do not meet the Serious
Wrongdoing criteria.

2. Background
The policy provides guidance about the principles and processes for making protected disclosures at
the Commission.

3. Content
3.1 Scope of the Policy
All employees and non-employees are entitled to make protected disclosures to the Commission about
the Commission. They may also make disclosures to the Commission (as an Appropriate Authority)
about another organisations.

3.2 Definitions
Appropriate Authority
An appropriate authority, without limiting the meaning of the term,
•  includes the head of any public sector organisation; and
•  includes any officer of Parliament; and
•  includes (as examples) the persons or bodies listed in the second column of Schedule 2 of the
Act; and
•  includes the membership body of a particular profession, trade, or calling with the power to
discipline its members; but
•  does not include
o  a Minister; or
o  a member of Parliament.

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Protected disclosure
A disclosure of information is a protected disclosure if the discloser
•  believes on reasonable grounds that there is, or has been, serious wrongdoing in or by the
discloser’s organisation; and
•  discloses information about that in accordance with this Act; and
•  does not disclose it in bad faith.

Serious Wrongdoing
In the Act, serious wrongdoing includes any act, omission, or course of conduct in (or by) any
organisation that is 1 or more of the following:
•  an offence:
•  a serious risk to
o  public health; or
o  public safety; or
o  the health or safety of any individual; or
o  the environment
•  a serious risk to the maintenance of law, including
o  the prevention, investigation, and detection of offences; or
o  the right to a fair trial:
•  an unlawful, a corrupt, or an irregular use of public funds or public resources:
•  oppressive, unlawfully discriminatory, or grossly negligent, or that is gross mismanagement,
and is done (or is an omission) by
o  an employee (if the organisation is a public sector organisation) or
o  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.

3.3 Who can make a protected disclosure?
Any employee of the Commission may make a protected disclosure.  For the purpose of the
Protected Disclosures Act, an employee includes a former employee, a home-worker, a person
seconded to the Commission, a contractor to the Commission, a person involved in the management
of the Commission including a member of the Commission Board and an unpaid volunteer.
A person who makes a protected disclosure is called a discloser.

3.4 Protections afforded to a discloser
A discloser is entitled to protection under this Act for a protected disclosure to their organisation or to
an appropriate authority. These protections are not available for disclosure of wrongdoing that does
not meet the Serious Wrongdoing criteria.
A discloser is entitled to protection for a protected disclosure made to their organisation if it is made
•  in accordance with any internal procedures; or
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•  to the head or a deputy head of the organisation.
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.)
A discloser is entitled to protection even if
•  they are mistaken and there is no serious wrongdoing; or
•  they do not refer to the name of this Act when making the disclosure; or
•  they technically fail to comply with some requirements as a discloser (as long as they have
substantially complied); or
•  they also make the disclosure to another person, as long as they do so
o  on a confidential basis; and
o  for the purposes of seeking advice about whether or how to make a protected
disclosure in accordance with this Act.
A discloser is entitled to the following protections under the Act for a protected disclosure made (in
accordance with the Act) to their organisation or to an appropriate authority.
•  the receiver must use their best endeavours to keep the discloser’s identity confidential (the
limits to confidentiality are in section 17(2) of the Act, the Commission will consult with the
employee before the discloser’s’ identity is revealed); and
•  there can be no retaliation against the discloser’s employment (immunity from civil, criminal,
and disciplinary proceedings); and
•  the discloser (and their relatives and associates) cannot be treated less favourably; and
•  the discloser has an immunity for the disclosure in court or disciplinary proceedings (see
section 23); and
•  the organisation cannot contract out of this Act or have internal procedures that are
inconsistent with this Act.
A public sector organisation must provide practical assistance and advice to the discloser in relation to
serious wrongdoing in or by that organization. Employees are entitled to representation or support in
making the disclosure and the Commission will engage with the employee if any risks need to be
assessed. The discloser can seek advice from the Ombudsmen at any time with regard to the duty of
confidentiality These protections extend to other employees who discloses supporting or additional
information.
3.4.1 Exemptions from protection
•  Any employee who makes a disclosure (believing the information to be true or likely to be true)
is immune from criminal or civil proceedings by reason of making the disclosure.  However, an
employee is not immune from civil or criminal prosecution by reason of involvement in the
wrongdoing itself.
•  An employee is not protected under this Act if they disclose legally privileged material.
Any employee who makes a disclosure knowing that it is false or makes a disclosure in bad faith will not
be protected by this Act.

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4. Responsibilities and procedures
A discloser may raise their concern following their organisation’s internal procedures (as set out
below).
A discloser may also choose to raise their concern directly with an appropriate authority.
4.1 Reporting Procedures
In the first instance the disclosure must be reported to the employee’s manager unless:
•  they reasonably believe that their manager is involved in the Serious Wrongdoing; or
•  the manager, for reasons of relationship or association with someone who is believed to be
involved in the Serious Wrongdoing, cannot be approached.
If the employee is unable to approach their manager, the employee must report the wrongdoing to the
Chief Electoral Officer unless:
•  they reasonably believe the Chief Electoral Officer is involved in the Serious Wrongdoing; or
•  the Chief Electoral Officer, for reasons of a relationship or association with someone who is
believed to be involved in the Serious Wrongdoing, cannot be approached.
If the employee is unable to approach the Chief Electoral Officer, the employee must report the
wrongdoing to another member of the Commission Board unless:
•  they reasonably believe all members of the Board are involved in the Serious Wrongdoing; or
•  all Board members, for reasons of a relationship or association with someone who is believed
to be involved in the Serious Wrongdoing, cannot be approached.
If the employee reasonably believes they cannot approach any of the level of managers or Board
members because they may be involved or associated with the Serious Wrongdoing, by reason of
urgency/exceptional circumstances, or if there has been no action by Commission within 20 working
days of making a disclosure, the employee may approach an appropriate authority.
4.2 The Commission’s obligations
Protected disclosures may be made about wrongdoing concerning the Commission or when someone
makes a protected disclosure to the Commission (as an appropriate authority) about another
organization.
Procedure if an employee makes a protected disclosure concerning the Commission
A protected disclosure may be verbal provided it is confirmed in writing using the reporting form at the
end of this section.
Once a disclosure has been submitted on the form required by this policy, the manager or Board
member receiving the disclosure (the “Receiving Manager”) will formally acknowledge receipt within 2
working days.
Within 10 working days of receiving the disclosure, the Receiving Manager will assess, in consultation
with the Chief Electoral Officer and/or other members of the Board where appropriate, whether they
believe the disclosure meets the Serious Wrongdoing criteria and that the disclosure has
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substance.  The Receiving Manager, or any other person appointed by the Commission, will carry out
preliminary investigation to determine whether:
•  the disclosure meets the criteria of ‘serious wrongdoing’. If the disclosure does not meet the
Serious Wrongdoing criteria, the Commission will apply this policy to the disclosure to the
extent it is practicable to do so
•  the disclosure has substance
•  an internal investigation will proceed, such as systems and processes investigation or
disciplinary investigation
•  the alleged wrongdoing will be referred to another agency.
The Receiving Manager will then, , inform the employee of the decision to proceed or not proceed with
an investigation, the specific reasons for which will be detailed in the decision.
Where an investigation is initiated and whenever possible, a preliminary finding will be made within 20
working days of receipt of the disclosure. If the matter cannot be assessed within the 20 days, the
Commssion will inform the discloser, give an update and provide reasons.
The Commission may refer the protected disclosure to another appropriate authority after consultation
with the discloser.
Procedure if someone makes a protected disclosure about another organisation to the Commission (as
an Appropriate Authority)
The commission will manage and investigate the disclosure in the same manner as a disclosure about
the Commission and may decide to refer the protected disclosure to the relevant organization or to
another appropriate authority after consultation with the discloser.
4.3 Investigations
An investigation may include:
•  preliminary investigation into criteria, substance and individuals involved
•  audit into the possible failure of systems and processes
•  disciplinary investigation into an individual(s)
4.5 Confidentiality
The Commission will use its best endeavours to keep the identity of the employee who made the
disclosure confidential.  However, the Commission may be required, in accordance with the principles
of natural justice, to provide to the alleged wrongdoer any information relating to them.  This may
include the identity of the employee who alleged the wrongdoing and/or the information on the
reporting form.
The Commission may also be required to disclose identifying information if that is essential to the
effective investigation of the alleged wrongdoing or to prevent serious risk to the public health, the
public safety, or the environment.
Where the Commission is required to disclose identifying information the Commission will inform the
employee.
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4.6 Victimisation
Where an employee feels they have been victimised or retaliated against for making a disclosure under
the Protected Disclosures Act they may take a personal grievance under the Employment Relations Act
2000 or make a complaint under the Human Rights Act 1993.These specific rights are limited to
disclosure of Serious Wrongdoing
The Commission will treat any allegation of victimisation or retaliation seriously.  Where the
Commission considers that victimisation or retaliation has occurred disciplinary action, including
dismissal, may result.
4.7 If the employee is dissatisfied with the Commission’s decisions about the protected
disclosure
Where the Commission decides not to take action in respect of a disclosure, or decides not to
investigate the disclosure, or there has been no progress in the investigation within a reasonable time,
and the employee continues to believe on reasonable grounds that the matter is true, the employee
may make the disclosure to a Minister of the Crown or the Ombudsman.

Further Information
The Manager Enterprise Services or the Manager Legal and Policy can provide further information
about protected disclosures and this policy.
The Ombudsman website also contains detailed information about protected disclosures and how the
Ombudsman may assist you:  http://www.ombudsman.parliament.nz/what-we-do/protecting-your-
rights/protected-disclosures-whistle-blowing

5. Related Electoral Commission Policies & Legislation
Related Policies
•  Code of Conduct
•  Managing Employee Conduct and Performance
Legislation
•  Employment Relations Act 2000
•  Human Rights Act 1993
•  Protected Disclosures Act 2000

6. Treaty of Waitangi Acknowledgment
This policy (Name of the Policy) commits to giving effect to Te Tiriti o Waitangi.
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By operating in the spirit of Te Tiriti o Waitangi and acting in good faith, our intention is to foster
mutual regard and understanding as we work alongside Māori, thereby ensuring Māori have
opportunities to participate fully in all levels and aspects of our organisation.
•  Remember to incorporate the Treaty of Waitangi principles when developing or reviewing the
policy. For example, operating in good faith, foster mutual regard and understanding as we
work alongside Māori.
•  Reflect the aspirational and interest of Māori. For example Māori have opportunities to
participate fully in all levels and aspects of the policy.
•  Reflect the Treaty of Waitangi practices. For example, Having a bilingual title, translation of
words in the body of the policy from English to Te Reo Māori need to be accurate and used
within best practice.

Document control
Document information
This document contains the Electoral Commission’s policy relating to (main subject of the policy).
It includes the accompanying processes and procedures to be followed to (main audience and
implementor of the policy) during (situation or event) as a result of (after-effect) in a separate
document.
Document history
Version
Date
Author
Description of change
Format is
July 2022
Leon Botha
Updates to reflect changes in the Act
V0.2
Please note: Do not make unauthorised electronic copies or new versions (drafts) of this corporate
policy. Contact People and Culture to have new drafts initiated and recorded in the appropriate
manner.
Status
Policy status
SMT Endorsement ☐
For consultation ☐
Further revision ☐
Approval date
Not applicable
Policy owner
Senior Management Team (SMT) Member/Sponsors
Revision cycle
Every three years
Next review
July 2025
Contact
The following business units were consulted in the development of this brief
Contact person
Not applicable, general Commission-wide consultation will happen
Reporting Wrongdoing and Protected Disclosures Policy
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Reporting Wrongdoing and Protected Disclosures Policy
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