Public interest disclosures news

October 16, 2020

Dear Colleague,

Welcome to Issue 41 of the PID e-news! We’ve included important information about:

ensuring you have the right details in your internal reporting policy.
reducing risks associated with reporting wrongdoing.
the valuable role that Audit and Risk Committees play in effective PID management frameworks.

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

Check your PID policy has the correct details

We encourage all agencies to check they have the correct contact details for relevant investigating authorities in their PID policy.

All agencies should be aware that:

The Law Enforcement Conduct Commission has replaced the Police Integrity Commission
The NSW Audit Office replaced the Office of Local Government as the investigating authority for PIDs alleging substantial waste.

Although these changes came into effect some time ago, now is a great time to check that your PID policy is up to date. Our model internal reporting policies are available to help you with this.

Reducing risks associated with reporting wrongdoing

It is important to assess and manage the risk of reprisal to internal reporters, as well as anyone else who might be involved in a PID. Doing so can protect your staff, as well as your agency.

Ideally, you should conduct risk assessments just after your agency receives the PID. You should then develop strategies to eliminate, minimise or manage any identified risks.

It is important to document the steps you have taken to assess and manage risks - our PID Risk Assessment template can help with this.

Stages in the risk assessment and management process include:

Stage 1: Identify the risks

It is important to question the internal reporter, to gain an understanding of any risks they may be exposed to. Each case is different, and the questions you ask will be guided by the specific context. Examples of possible questions include:

Does anybody know the identity of the reporter?
Has the reporter told anyone else they have made, or intended to make the report?
Has the reporter raised their concerns previously?
Is there a chance other staff members will infer the reporter has made the report?
Does the reporter have any specific concerns about reprisal?
Is the subject officer the reporter’s supervisor?
Does the reporter work closely with the subject officer?

Stage 2: Analyse and evaluate the risks

The PID Act states that information that might identify or tend to identify a person who has made a PID must not be disclosed unless:

the person consents in writing to the disclosure of the information.
it is generally known that the person has made a PID as they have voluntarily identified themselves.
it is essential to disclose the information to satisfy the principles of natural justice.
it is necessary for the information to be disclosed to allow for the matter to be effectively investigated.
it is otherwise in the public interest to do so.

Where confidentiality is unable to be maintained, there may be a heightened risk of reprisal. Other factors which may heighten the risk of reprisal include where:

two or more people are the subject of the allegations of wrongdoing.
the subject officer holds a higher position in the organisation.
the allegations of wrongdoing are serious.
there is a history of workplace conflict between the parties.

When analysing risks, consider the consequences of the risks, the likelihood they will occur, and any control measures that can be implemented to eliminate or mitigate them.

Stage 3: Risk treatment

Potential strategies to reduce and manage risks of reprisal include:

keeping the identity of the reporter and subject officer(s) confidential.
developing a reporter support strategy, including appointing a support officer.
proactively advising subject officers about the consequences of taking reprisal action.
reviewing supervision arrangements.
communicating with managers and supervisors about keeping the identity of the reporter confidential, and encouraging them to monitor the work environment for signs of conflict.
temporarily relocating the subject officer to a different location/ role.
independently verifying the work performance of the reporter.

Each case is different. The key is to implement strategies which are proportionate to the risks you have identified, and to communicate why you have implemented each strategy.

Stage 4: Monitor and review

Risks may need to be reviewed at various points in the process, such as when a decision is made to investigate, during the investigation and once the outcome of an investigation is known. Where risks have changed, you should also review the strategies to treat each risk.

Our published guidance on Supporting and protecting reporters includes:

Guideline D4: Preventing and containing reprisals and conflict provides advice to agencies on their obligations to prevent, manage and contain risks of reprisal when wrongdoing is reported.
Guideline D5: Responding to allegations of reprisal provides advice to agencies on responding to allegations of reprisal following the making of a PID.

ICAC Report: The Importance of Audit and Risk Committees

ICAC has released a report highlighting the important role of Audit and Risk Committees (ARCs) in managing fraud and corruption risks. This includes the role that ARCs play in PID management frameworks.

ICAC recommends ARCs:

Monitor their agency’s framework for receiving, assessing and investigating complaints about corruption and other types of misconduct.
Monitor their agency’s compliance with the PID Act.
Ensure their agency complies with their PID reporting obligations.
Analyse any trends stemming from PIDs and complaints.
Seek assurances that any systemic improvements recommended by an investigation are implemented.

We encourage agencies to consider ICAC’s recommendations and bring them to the attention of their ARC. We suggest that ARCs make PIDs a standing agenda item, and that they regularly engage with their agency’s Disclosures Coordinator to understand how the PID management program is operating in practice.

Continuous improvement should sit at the heart of all integrity frameworks. Agencies are exposed to constantly evolving risks, and integrity frameworks need to evolve to meet these challenges. Even where a PID or complaint has not been substantiated, there may still be opportunities to improve control frameworks.