Introduction
Tonga now has a dedicated whistleblower law. It is the first statute of its kind in the Kingdom.
The Act runs to only thirteen sections, but its reach is wider than its length suggests. It creates offences carrying up to ten years' imprisonment, immunises certain disclosures from civil, criminal and disciplinary consequences, and imposes publication and training duties on public authorities. Its definition of whistleblower expressly extends to contractors, suppliers and private sector employees, so it is not a public sector matter alone.
Who is protected
The definition of "whistleblower" covers public servants, employees of public authorities, contractors, subcontractors and suppliers to public authorities, private sector employees, and any person who reports misconduct, illegal activity or violations of public service policies.
The definition of "public official" is correspondingly wide. It captures Ministers, members of the Legislative Assembly and their employees, judges and magistrates, officers and temporary employees of the Public Service, members of the Police Force, persons in the service of the Crown or of a public authority, delegates and deputies, and estate holders when exercising statutory functions. That last category is of particular local significance and should not be overlooked in estate administration matters.
"Public authority" covers Government departments, statutory bodies, public enterprises, the Police Force, public bodies, and holders of public office.
What can be disclosed
The Act protects disclosure of "serious wrongdoing", defined to include a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or fraud, threats to public health, safety or the environment, gross mismanagement or waste of public resources, abuse of authority, and other conduct detrimental to the public interest. A "public interest disclosure" extends to misconduct including environmental violations, human rights abuses, workplace safety breaches and financial irregularities.
The threshold is reasonable belief, not proof. Section 5(3) protects a person who believes on reasonable grounds that the information is true, and also a person who cannot form such a belief but reasonably believes the information may be true and is significant enough to warrant investigation.
The protections
A whistleblower who makes a public interest disclosure to an appropriate authority in good faith incurs no civil or criminal liability and does not become liable to disciplinary or other adverse administrative action. The same protection applies to a person who cooperates with a requirement imposed by a relevant authorised officer.
Critically, this applies even where the disclosure breaches an obligation of confidentiality. Confidentiality clauses in employment contracts, consultancy agreements, supply contracts and settlement deeds will not defeat the statutory protection, and employers should not threaten enforcement on that basis.
A statement made to a relevant authorised officer is not admissible against the maker in civil or criminal proceedings, subject to narrow exceptions for corruption proceedings, Public Service Commission misconduct inquiries, and prosecutions for perjury or obstruction. None of these protections apply to information given knowing it to be false or misleading, or given in bad faith.
The three offences
Victimisation (section 7). Causing or threatening detriment to a whistleblower because of a disclosure or intended disclosure. Retaliation is defined to include termination, demotion, suspension, harassment, discrimination and any other reprisal. The penalty is a fine not exceeding $100,000 or imprisonment for 10 years, or both. A convicting court may also order compensation to the victim, and civil remedies are preserved.
Breach of confidentiality (section 10). Disclosing the identity of a whistleblower to an unauthorised person, or engaging in conduct that results in that disclosure. The penalty is a fine not exceeding $50,000 or imprisonment for up to 5 years, or both. Exceptions apply where disclosure is necessary for proper investigation or made with consent.
Note that this offence applies to any person, not only officers of the receiving authority. A supervisor who tells colleagues who made the complaint is exposed.
False or malicious disclosure (section 11). Intentionally making a false, malicious or misleading disclosure. The penalty is a fine not exceeding $50,000 or imprisonment for up to 5 years, or both.
Duties on public authorities
Public authorities must publicise how a disclosure may be made and the protections the Act offers. The appropriate authority must conduct regular training for public officials and employees and run public awareness campaigns. A comprehensive review of the Act, with public consultation and a report to the Legislative Assembly, is required at least once every five years.
Points to watch
The Act also creates offences and preserves civil remedies but does not create a statutory cause of action for a whistleblower who suffers detriment, a right to reinstatement, or a reversal of the burden of proof in an employment dispute. Compensation under section 7(3) depends on a conviction being obtained. A dismissed whistleblower must otherwise look to the general law.
No regulations have yet been made under section 12, which would be the natural vehicle for prescribing forms, secure channels and timeframes.
Practical steps
For civil servants. Identify the correct channel before disclosing rather than after. Stay inside the statutory pathway. Keep a contemporaneous record of what you knew and when, since protection turns on reasonable belief at the time. Do not overstate. If detriment follows, record dates, decision makers and any change in duties or conditions immediately.
For businesses and contractors. Review confidentiality and non disparagement clauses, which will not bind against a protected disclosure. Update internal speak up policies to name the two external authorities. Train managers on section 10, since identifying a complainant to colleagues is the most likely corporate exposure. Document any disciplinary decision involving a person who has raised concerns against objective grounds, and have it reviewed before implementation. Public enterprises and statutory bodies must attend to the section 8 publication duty.
How we can assist
Semper Fidelis Pacific Law & Advisory Limited advises public sector bodies, statutory authorities, public enterprises, companies and individuals in Tonga. In relation to this Act we can assist with assessing whether a proposed disclosure falls within the protective scheme, preparing and lodging disclosures, advising those who have suffered detriment, drafting speak up policies and confidentiality provisions, and delivering management training on sections 7 and 10.
To discuss how the Act affects your organisation, contact Semper Fidelis Pacific Law & Advisory Limited, Nuku'alofa, Kingdom of Tonga.
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