How public interest disclosures are handled in NSW has changed, with the Public Interest Disclosures Act 2022 replacing the previous 1994 Act.
The changes introduce significant reforms to how public interest disclosures are made, received and handled, and offers greater protection to people who make public interest disclosures compared to the old law.
The new Act came into force on 1 October 2023, which applies to and imposes several obligations on NSW public sector agencies. These obligations include training and awareness responsibilities on all managers and employees as well as strengthening criminal penalties and civil liabilities for individuals and agencies.
Who does the new Act apply to?
Under section 16 of the Act, an agency includes individuals and bodies including a public service agency as defined by the Government Sector Employment Act 2013 (NSW), as well as any statutory body representing the Crown. Along with those two entities, integrity agencies, state-owned corporations, local government authorities and local Aboriginal Land Councils are also covered by the Act.
What is a public interest disclosure?
Under section 21 of the Act, public interest disclosures fall into three categories. The first are mandatory public interest disclosures, which cover serious wrongdoing by a public official.
The second category are witness public interest disclosures, which are disclosures of information in the investigation of serious wrongdoing. These disclosures can also come at the request of a person or agency investigating wrongdoing. Investigations can arise from either a voluntary public interest disclosure, or if they constitute an investigation dealing with information from a voluntary public interest disclosure.
The third, and final, category public interest disclosures fall into are voluntary public interest disclosures. These disclosures are most comparable to public interest disclosures under the PID Act 1994. They comply with the requirements of the PID Act 2022 but are not witness or mandatory public interest disclosures or are made orally to a minister or a minister’s staff.
A disclosure qualifies as a voluntary public interest disclosure if the maker of the disclosure honestly and on reasonable grounds believes 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 (see section 26(3) of the PID Act 2022). Section 29 of the PID Act 2022 enables the head of an agency to determine that a disclosure made by a person is a voluntary public interest disclosure, even if the disclosure is not.
What is serious wrongdoing?
Each of the three categories of public interest disclosure provides protection to the maker of the disclosure where the disclosure is about ‘serious wrongdoing’ by a public official. This term is broadly defined in section 13 of the PID Act 2022 and includes:
a privacy contravention
a serious and substantial waste of money.
A disclosure is about serious wrongdoing if the disclosure includes an allegation of the serious wrongdoing or shows or tends to show the serious wrongdoing.
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 specified under the PID Act 1994. For example, serious maladministration refers to conduct “other than conduct of a trivial nature”. In contrast, the PID Act 1994 defined 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 wilfully makes a false statement or misleads or attempts to mislead the agency or person to whom the disclosure is made.
Key obligations for agencies
The PID Act 2022 creates several obligations for agencies, including the necessity to have a public interest disclosure policy. All agencies covered by the Act must have such policies. Agencies also must provide appropriate training to disclosure officers for the agency, which includes the head of agency and managers of public officials associated with the agency. They should also take steps to assess and minimise the risk of detrimental action being taken against a person because of them making a voluntary public interest disclosure.
Along with training and protections, agencies also must report data about the voluntary public interest disclosures they have received every year (in an annual return) to the NSW Ombudsman. Agencies must also notify the NSW Ombudsman when certain events happen, such as when they receive an allegation of detrimental action or when they decide not to investigate or cease investigating a public interest disclosure.
Finally, all contracts and subcontracts under which a person or body is engaged to provide services on behalf of an agency must include a series of terms requiring the engaged person or body to ensure all individuals involved in providing services under the contract are made aware they are ‘public officials’ under the PID Act 2022, as well as how to make a voluntary public interest disclosure, along with the contracting agency’s public interest disclosure policy.
Agencies covered by the new Act must ensure they have the policies and procedures in place to maintain compliance, as well as the training, support and resources for employees to recognise and report serious wrongdoing when they see It.
By Greg Wrobel, Partner, Holding Redlich