Public interest disclosures news 

December 17, 2020

Dear Colleague,

Welcome to Issue 42 of the PID e-news, our final edition for 2020! We would like to take this opportunity to wish you a happy and safe Christmas break and New Year.

In this edition, we’ve included important information about:

• Our PID Oversight Annual Report 2019-20
• The PID team’s recent online training sessions and availability over the Christmas and New Year period.
• A special report relating to a PID made to us about Broken Hill City Council.
• The Corruption Prevention Network.

As always, we encourage you to access the information on our website, or if you have any questions, please get in touch with the PID team through pid@ombo.nsw.gov.au.

Remember to update us if your agency changes who is responsible for PID management!

Feel free to forward this edition of PID e-news to interested colleagues – they can subscribe through the link.

Kind regards
PID Unit

Contents

• The PID Oversight Annual Report 2019-20
• Our availability over the Christmas period

• An inherent conflict of interest: councils as developer and regulator

• Corruption Prevention Network of NSW

The PID Oversight Annual Report 2019-20

The NSW Ombudsman’s report on public sector whistleblowing shows that NSW public officials made 949 PIDs to investigating authorities in the 2019-20 financial year.

Two thirds of those were made to ICAC by heads of public sector agencies who are required by law to report possible corrupt conduct. In addition, agencies received nearly 400 (383) reports of wrongdoing about their own agencies. Consistent with previous years, the majority (85%) of those included an allegation of corrupt conduct. 

While the report shows that there were slightly fewer PIDs in 2019-20 than in 2018-19, the number of reports remains higher than earlier years, and is consistent with a long-term trend of increased reporting. 

The Report notes that a proposed Bill to reform the NSW PID Act is expected to be introduced. The reforms were recommended by a 2017 Joint Parliamentary Committee. In 2018, the NSW Government stated that it would prepare a Bill in accordance with the Parliamentary Committee’s recommendations.

The Ombudsman’s report includes a discussion of the current protections available under the PID Act to whistleblowers who report directly to the media or to a Member of Parliament (MP).

Under the PID Act, a NSW public official who reports wrongdoing to the media will only gain protection under the PID Act if certain criteria are met. This includes that they must have previously made the same report either within their own agency or to an investigating authority. In addition, to be protected, the whistleblower’s disclosure to the media must be “substantially true”.

The Parliamentary Committee recommended that this “substantially true” requirement for disclosures to journalists and MPs be removed from the PID Act. The Committee considered that this requirement creates a risk for public officials, that may dissuade them from reporting wrongdoing. 

 The Report is available now on the NSW Ombudsman’s website.

Our availability over the Christmas period

Our office will be closed from 21 December 2020 to 8 January 2021. Any PID queries that are sent over this period will be responded to from 11 January 2021.

 PID training update

On 3 November, we commenced a pilot program of delivering the following online PID training:

1.     PID Awareness—a one-hour information session focused on raising awareness among public officials about the PID Act and how to report wrongdoing.

2.     PID Management—a two-hour intensive workshop-based training session aimed at disclosures coordinators, disclosures officers and managers, with a focus on effective PID management.

To date, we have delivered 16 training sessions to 413 public officials and received positive feedback from participants. This training will be offered again in March 2021. For information about availability, please contact training@ombo.nsw.gov.au.

We have also removed the e-learning modules from our website as we will be developing new and refreshed resources in the future.

An inherent conflict of interest: councils as developer and regulator

In December 2019 we finalised an investigation into a PID made to us about Broken Hill City Council. We found Broken Hill City Council had acted contrary to law by holding a number of public functions in 2016 and 2017 in the incompletely refurbished Civic Centre prior to gaining the required occupation certificate. For important reasons of public safety, use of a building without the necessary occupation certificate is strictly prohibited by the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

As well as finding that Broken Hill City Council’s actions in using (and allowing others to use) the Centre were wrong, the investigation highlighted a systemic problem: Broken Hill City Council was responsible for enforcing its own compliance with the EP&A Act, as well as other regulations. Broken Hill City Council took no enforcement action against itself for its own breach of the EP&A Act.

After finalising the investigation we conducted a survey of all councils across NSW to learn how other councils dealt with the inherent conflict that arises when a council is both the regulator for a development (regardless of whether it is also the consent authority) and at the same time the owner or proponent of that development. The conflict also means a lack of transparency; the unlawful and potentially unsafe use of the Broken Hill Civic Centre would likely not have come to light at all but for whistleblower reports.

Further information about this can be found in our special report to parliament titled 'An inherent conflict of interest: councils as developer and regulator' available here.

Corruption Prevention Network of NSW

Along with ICAC, our office is an active supporter of the Corruption Prevention Network of NSW (CPN). The CPN is a not-for-profit organisation committed to providing learning opportunities to individuals involved in corruption prevention and fraud control, with a wide range of members from across the public and private sectors. The CPN runs monthly seminars on a range of topics relevant to PID practitioners. Recordings of some previous seminars are available on their website.