Protected Disclosures (Whistleblowing)

Who can make a protected disclosure?

To make a protected disclosure, you must be someone who is or has been:

• an employee of the organisation
• a secondee to the organisation
• contracted to do work for the organisation
• involved in the management of the organisation (including a member of the board or the governing body)
• a volunteer to the organisation
• a homeworker ('homeworker' has the same meaning as in section 5 of the Employment Relations Act 2000), or
• a member of the Armed Forces with the New Zealand Defence Force.

A person who discloses information in support of, or relating to, a protected disclosure by someone else is also entitled to protection as long as they meet the requirements of the Act.

What is serious wrongdoing?

Under the Act, the following definition of serious wrongdoing applies to both the private and public sectors:

• an offence
• a serious risk to the health or safety of the public or an individual
• a serious risk to the maintenance of the law.

The following definition of serious wrongdoing also applies, but only to the public sector:

• unlawful, corrupt, or irregular use of public funds or resources
• oppressive, discriminatory or grossly negligent acts, or gross mismanagement by a public sector employee or a person performing a public function.

How am I protected under the Act?

If you make a protected disclosure to Maritime NZ, under the Act you are entitled to the following protections:

• you are immune from civil, criminal or disciplinary proceedings in relation to making the protected disclosure
• your employer cannot retaliate against you or treat you less favourably because you made the disclosure.

Circumstances where you are not protected under the Act

You are not protected from action being taken against you if you were involved in the wrongdoing.

You are not entitled to protection under the Act if:

• you know the allegations are false
• you make the disclosure directly to the media or on social media
• you make the disclosure in bad faith
• the information you are disclosing is protected by legal professional privilege.

What is 'bad faith'?

In this instance, bad faith means making a disclosure for a dubious motive, such as intimidation.

What sort of protected disclosures can be made to Maritime NZ?

Maritime NZ is likely to be the appropriate authority for reports about serious wrongdoing relating to maritime safety, maritime security, protection of the marine environment, and work or related activities (for example, governance) onboard ships and at designated ports.

 What will Maritime NZ do with my protected disclosure?

We will treat a disclosure as a protected disclosure if it:

• meets all the legal requirements for a protected disclosure (see 1. What is a protected disclosure? above), or
• states that a protected disclosure is being made but it is not immediately clear to us whether the criteria for a protected disclosure have been met, or
• does not clearly state that a protected disclosure is being made but the content appears to be a protected disclosure.

If, after an assessment of your protected disclosure, we decide to investigate it, we will:

• advise the organisation about the allegations that have been made against them and provide them with an opportunity to respond, and
• keep you and the organisation informed of progress, including the outcome.

If our investigation finds there has been serious wrongdoing, we may:

• consider using our corrective and enforcement tools
• advise other agencies as appropriate, for example, NZ Police, WorkSafe, the Serious Fraud Office
• take no action. For example, if the serious wrongdoing is associated with a foreign or defunct company and there is no prospect of such action being successful. See also ‘If we decide not to investigate’ below.

If we find there has been wrongdoing but it does not amount to serious wrongdoing, we will still consider taking action.

If we find there has been no wrongdoing, we will take no further action.

We will take action if we identify a serious immediate or imminent risk

If we reasonably believe information disclosed to us relates to a situation that is, or may pose, a serious immediate or imminent risk to an individual’s or the public’s health or safety, or the environment, we will either use our corrective and enforcement tools under the Maritime Transport Act 1994 or the Health and Safety at Work Act 2015 if we are the appropriate authority to do so or, if not, immediately refer the protected disclosure to the appropriate authority to take action.

If we decide not to investigate

Where circumstances exist that mean carrying out an investigation would likely serve no purpose, we will not investigate. For example:

• the length of time since the alleged wrongdoing would make an investigation impractical, or
• if the serious wrongdoing is associated with a foreign or defunct company and there is no prospect of such action being successful, or
• evidence and witnesses are not available to back up the allegations.

In some circumstances, we may not be the appropriate authority to investigate the matter. If this is the case, we will contact the discloser and may refer the protected disclosure to the appropriate authority.

How to make a protected disclosure to Maritime NZ

Please read the information on this page before making a protected disclosure to us.

You can make a protected disclosure through our Contact Us form, by selecting 'Protected Disclosure (Whistleblowing)' from the drop down menu.