Posted on June 17, 2022 by Alex Rutherford and Sue Puckeridge 7

Reforms to the management of public interest disclosures in NSW

The Public Interest Disclosures Act 2022 (PID Act 2022) will commence either on 13 October 2023, being 18 months after the date of assent, or on an earlier day or days to be appointed by proclamation, and will repeal the Public Interest Disclosures Act 1994 (PID Act 1994). The PID Act 2022 introduces significant reforms to the ways that public interest disclosures are made, received and dealt with in New South Wales and is intended to provide greater protection of persons who make public interest disclosures than that currently afforded under the PID Act 1994.

Background

The reforms under the PID Act 2022 arise primarily in response to two separate Joint Parliamentary Committee reviews:

• Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission, ‘Review of the Public Interest Disclosures Act 1994‘ published October 2017 (Ombudsman Report)
• Committee on the Independent Commission Against Corruption, ‘Protections for People who make Voluntary Disclosures to the Independent Commission Against Corruption’ published November 2019 (ICAC Report)

The Ombudsman Report made 38 recommendations for reform, including recommending a simplified disclosure process, decreasing technicalities resulting in unprotected disclosures and enhancing whistleblower protections.

The ICAC Report made similar recommendations in respect of disclosures made to the Independent Commission Against Corruption (ICAC), finding that the existing protections likely only apply where a person is required to make the disclosure, and not where the disclosure was voluntary. The ICAC Report recommended reforms to ensure that persons who make voluntary disclosures to the ICAC are protected against criminal, civil or disciplinary liability.

Public Interest Disclosure Policies

Similar to the requirement under the PID Act 1994, public authorities must have a public interest disclosure policy which, among other matters, sets out the agency’s procedures regarding public interest disclosures, and identifies their nominated disclosure officers. The requirements for the disclosure policy are significantly more prescriptive than under the PID Act 1994, and accordingly agencies will need to ensure that their policies are updated to comply with the requirements of the new Act prior to the commencement date.

The content of public interest disclosure policies is prescribed by section 43 of the PID Act 2022, and includes:

• procedures for dealing with, acknowledging receipt of and providing information to the makers of, voluntary public interest disclosures,
• procedures for assessing and minimising the risk of detrimental action being taken against a person as a result of a public interest disclosure being made,
• identifying the responsibilities imposed by the PID Act 2022 on the head of the agency, other disclosure officers and managers associated with the agency, and
• a list identifying the disclosure officers for the agency and their contact details.

Given the substantial differences between the PID Act 2022 and the PID Act 1994, agencies existing policies will need to be either significantly redrafted, or new policies prepared.

To assist agencies in the transition to the PID Act 2022, the Ombudsman is in the process of preparing updated guidelines, including a new model public interest disclosure policy, reporting tools and templates. The Ombudsman has also indicated that it will be provided training and support for agencies in transitioning. Agencies should ensure that they keep up to date with these announcements via the Ombudsman’s website here, and by subscribing to the Ombudsman’s PID eNews service here.

What is a public interest disclosure?

Under the PID Act 2022, public interest disclosures will be separated into three categories:

• Voluntary public interest disclosures
• Witness public interest disclosures
• Mandatory public interest disclosures

Mandatory public interest disclosures are disclosures about serious wrongdoing made by a public official either while meeting the ordinary requirements of the official’s particular role or functions, or under a statutory or other legal obligation.

Witness public interest disclosures are disclosures of information in an investigation of serious wrongdoing, or at the request of or in response to a requirement of a person or agency investigating the serious wrongdoing, whether or not the investigation:

• relates to or arises from the making of a voluntary public interest disclosure, or
• constitutes dealing with a voluntary public interest disclosure.

Voluntary public interest disclosures

Voluntary public interest disclosures are most comparable to public interest disclosures under the PID Act 1994  and are disclosures which comply with the requirements of the PID Act 2022 but which are not witness or mandatory public interest disclosures, or are made orally to a Minister or a Minister’s staff.

For a disclosure to qualify as a voluntary disclosure, the person making the disclosure must honestly and on reasonable grounds believe that the disclosure shows or tends to show serious wrongdoing.  Employment grievances which do not have significant implications beyond matters personally affecting an individual or disagreements as to reasonable management actions are not voluntary public interest disclosures: s26(3).

There is also a power for the head of an agency to make a determination that a disclosure made by a person is a voluntary public interest disclosure, even if the disclosure would not otherwise be such.

The administrative requirements for receiving and dealing with voluntary public interest disclosures are set out at Part 5 of the PID Act 2022.

Serious wrongdoing

Each of the categories of disclosure provide protections to the maker of the disclosure where the disclosure is about serious wrongdoing by a public office. Serious wrongdoing is defined in s 13 of the PID Act 2022 as the following:

1. corrupt conduct,
2. a government information contravention,
3. a local government pecuniary interest contravention,
4. serious maladministration,
5. a privacy contravention,
6. a serious and substantial waste of public money.

Relevantly, a disclosure is about serious wrongdoing if the disclosure:

1. includes an allegation of the serious wrongdoing, or
2. otherwise shows or tends to show the serious wrongdoing.

We note that while the PID Act 2022 refers to serious wrongdoing, the threshold seriousness set by a number of the categories of wrongdoing is lower than that under the PID Act 1994. For example, serious maladministration refers to conduct ‘other than conduct of a trivial nature’. By contrast, the PID Act 1994 defines maladministration as only being relevant ‘action or inaction of a serious nature.’

A disclosure will not be a public interest disclosure to the extent that the maker of the disclosure willfully makes a false statement, or misleads or attempts to mislead the agency or person to whom the disclosure is made.

Who can make a public interest disclosure?

The categories of persons who can make a public interest disclosure are significantly expanded. In addition to persons employed by an agency, persons providing services or exercising functions on behalf of an agency, including a contractor, subcontractor or volunteer, will be able to make a public interest disclosure.

Local councils, State Government departments and all Public Service agencies identified in the Government Sector Employment Act 2013 are agencies under the PID Act 2022, and accordingly any employees, contractors, subcontractors and volunteers of any of any of those agencies will be a public official for the purposes of the Act.

Who is a public interest disclosure made to?

Under the PID Act 1994, a disclosure that is not made to the appropriate investigating authority or public authority is generally not regarded as a public interest disclosure, and therefore the person who makes the disclosure is not afforded the protections available under the Act.  The only exception to this is where the public official who made the misdirected disclosure honestly believed it was the appropriate investigating authority to deal with the disclosure.

In response to criticism of the current framework, under the PID Act 2022 a person will not be disadvantaged by making a disclosure to the ‘wrong’ person – as rather than there being separate pathways for making a public interest disclosure, all public interest disclosures will be made in the same manner.

While a public authority is currently only required to designate at least one officer of the public authority as being responsible for receiving public interest disclosures, in light of concerns raised in the Ombudsman Report that public authorities often do not nominate a sufficient number of officers to facilitate disclosures, the number of recipients of voluntary public interest disclosures has been widened to include:

• the head of an agency,
• another disclosure officer for an agency, and
• a manager of the person making the disclosure.

The PID Act 2022 imposes a mandatory obligation on managers who receive a public interest disclosure , to communicate, as soon as practicable, the disclosure to a disclosure officer for an agency with which either the manager or the public official who made the disclosure is associated.  Manager is very broadly defined in section 15 of the PID Act 2022.

A voluntary public interest disclosure may also be made to a member of Parliament or a journalist.  Such a disclosure will only be protected if  made in limited circumstances, namely where the disclosure is substantially true, the same disclosure has already been made to a person within the agency, and the agency made a decision neither to investigate nor refer the disclosure or has ceased to investigate the disclosure.

What are the protections for a person who makes a public interest disclosure?

Part 3 of the PID Act 2022 provides the protections for persons who makes a public interest disclosure, by making it an offence to take detrimental action against a person who has made a public interest disclosure, where their making of the public interest disclosure is a contributing factor to the taking of the action. This is a lower threshold than that under the PID Act 1994, under which it is only an offence to take detrimental action against the maker of a public interest disclosure that was “substantially in reprisal” for the disclosure.

A copy of the PID Act 2022 is available on the NSW Legislation website here.

If you wish to discuss the issues raised in this post, please contact Sue Puckeridge on 8235 9702 or Alex Rutherford on 8235 9720.