Public interest disclosures news

October 21, 2021

Dear Colleague,

Public Interest Disclosures Bill 2021 - Significant enhancement to whistleblower protections in NSW

The willingness of public servants and employees at all levels to report serious wrongdoing when they see it is essential to maintaining the integrity of the public sector.

Twenty seven years ago, New South Wales was among the first jurisdictions in the country to enact a public interest disclosures regime – known then as the ‘Protected Disclosures Act’. The Act has been subject to numerous changes since that time, including in 2010 when, following recommendations of the NSW Ombudsman, the title of the Act changed to the Public Interest Disclosures Act 1994 (NSW) (PID Act).

On 14 October 2021 the Special Minister of State, the Hon. Don Harwin MP, introduced the Public Interest Disclosures Bill 2021 (the PID Bill) into the NSW Legislative Council [First Print of the Public Interest Disclosures Bill 2021 ].

On commencement, the new PID Bill will replace the PID Act in its entirety and represents a significant enhancement to whistleblower protections in NSW. The Bill ensures reports of wrongdoing are acted upon, that reporters are encouraged to come forward, and are protected when they do.

The right protections are essential to create a positive, speak-up culture in NSW

The NSW Ombudsman has tabled a Special Report on the PID Bill that examines the Public Interest Disclosures Bill 2021, which is currently before the NSW Parliament. This edition of the PID e-News summarises some of the key features of that Report, highlights the work that must be done to prepare, and outlines how our office will support you through the process.

The new PID Bill

Our assessment of the Bill—a significant improvement to the NSW PID regime

Although the Bill retains the broad substance of the current PID Act, the Bill is a complete re-write of that Act.

The Bill addresses many of the weaknesses in the existing PID Act. The Bill:

is simpler and easier to navigate
contains fewer trip hazards for would-be whistleblowers, including by expanding the permissible recipients of PIDs to include a person’s manager, and by protecting PIDs even if they are made to the wrong agency
provides more comprehensive protections, including for witnesses and those involved in investigating PIDs
provides a clearer duty on agencies to take appropriate steps to deal with the disclosures they receive
introduces enhanced measures to encourage a ‘speak up culture’ within agencies, for example by enhanced requirements around policies and training
facilities more comprehensive and meaningful reporting of data about PIDs.

Implementation of Parliamentary Committee recommendations

The Bill was prepared by the Government primarily in response to:

the October 2017 Review of the Public Interest Disclosures Act 1994 by the Ombo-LECC Committee (PID Act Review)
the November 2017 Protections for People who make Voluntary Disclosures to the ICAC by the ICAC Committee (ICAC Protections Report).

With one significant exception in relation to the treatment of external disclosures to members of Parliament and journalists, the Ombudsman’s view is that the recommendations of the PID Act Review and the ICAC Protections Report have been implemented in substance. The Special Report discusses the NSW Ombudsman’s position on the treatment of external disclosures, in particular in Annexure D.

Avenues for future research and advice

The Bill represents a major enhancement to whistleblower protections in NSW. Nonetheless, there are other potential improvements that we think would benefit from further research and consideration. These include:

whether the categories of ‘serious wrongdoing’ that can be the subject of a PID should be expanded or simplified
whether the definition of ‘maladministration’ should be clarified and/or expanded
whether greater clarity is required in respect of the definition of ‘public official’ when applied in the context of contracted-out services.

These issues will be considered further by the Steering Committee to provide further advice.

Time to prepare

The Bill has been referred to a Legislative Council Parliamentary Committee, which is due to report back on 15 November.

If the Bill is passed by Parliament, both agencies and our office will need to do a considerable amount of preparation before the Bill commences.

For this reason, the Bill provides for a commencement date up to 18 months after assent.

In the coming months, we will communicate with agencies about our development of a package of resources to assist agencies to prepare. This will include new guidelines, fact sheets, e-learning modules and training packages for the new legislation.

We will provide regular updates on the new legislation through the PID e-Newsletter, and publish information as it becomes available on the Ombudsman’s webpage.

We have prepared some FAQs on our website to assist agencies to navigate this process.

Current Act still in force

What must agencies do?

While it is important to prepare for the new Bill, it is important for agencies to remember that until it is commenced, they must continue to comply with the requirements of the PID Act. For example, agencies must continue to:

receive, assess and handle reports of wrongdoing that meet the definition of a ‘public interest disclosure’ under the PID Act.
submit returns to the Ombudsman every six months.
raise awareness of the internal reporting system in their agency with public officials (this includes staff, contractors and volunteers).
ensure that nominated disclosure officers are aware of their role in dealing with reports from staff, including those that are assessed as public interest disclosures.

How will our office assist agencies?

The Ombudsman’s office will continue to support agencies to meet these obligations. In particular we will:

continue to provide access to guidelines and fact sheets that relate to the current PID Act
upload information that agencies can use to support them with their awareness raising activities under the current legislation, including resources for training.
continue to provide advice and assistance to agencies on the current PID Act through pid@ombo.nsw.gov.au.

What do you need to do now?

The most important thing that agencies can do at this stage is to subscribe to our PID eNewsletter. This will ensure that we can communicate with you about the new requirements and the guidance as it becomes available.

The FAQs on our website give further information on next steps.