Protected disclosures (whistleblowing)
In NSW, an Act called the Protected Disclosures Act 1994 sets up a scheme that aims to encourage people who work in the NSW public sector to report maladministration, serious waste and wrong conduct of their colleagues or of any public sector agency they work for or with. Under the Act, if a public official makes a ‘protected disclosure’ they will have certain rights and protections.
Historically, people who come forward with this kind of information are not treated well and sometimes suffer professionally and personally. They are generally labelled as ‘whistleblowers’. Under the Protected Disclosures Act any detrimental action taken in retribution for a person making a protected disclosure is a criminal offence. The Act also provides a range of legal protections and places obligations on agencies handling protected disclosures to keep the whistleblower informed and their identity confidential.
People can report their concerns to our office or the public sector agency involved. We handle these disclosures in accordance with the Protected Disclosures Act. We also provide training, guidance and resources, such as our Protected Disclosures Guidelines, to agencies to help them handle protected disclosures and comply with the Act.
The role of the Ombudsman
The role of the NSW Ombudsman in relation to protected disclosures involves:
- dealing with complaints by whistleblowers about serious maladministration by public sector agencies and public officials
- dealing with complaints by public officials about compliance with or the implementation of the Protected Disclosures Act by public sector agencies or public officials
- dealing with complaints by whistleblowers and witnesses about detrimental action being taken against them
- providing advice to people contemplating making a protected disclosure or seeking advice on the interpretation and implementation of the Act
- developing and distributing resources, such as our Protected Disclosures Guidelines and providing advice and guidance to assist public sector agencies and their employees in the interpretation and implementation of the Act.
Our approach to protected disclosures is based on the premise that public sector agencies are responsible for making sure that genuine whistleblowers who expose wrong conduct are protected from reprisals.
If you become aware that something is seriously wrong in the way a public sector agency or employee has acted or is acting, it is in the public interest and in the agency’s interest that you tell someone who can do something about it.
Click here to view a brochure called ‘Thinking about blowing the whistle?’ containing more details on how to make a protected disclosure or ring the NSW Ombudsman for specific advice on how best to raise your concerns.
What is a protected disclosure?
The Protected Disclosures Act provides protection for people who come forward with information about the following serious matters concerning the way agencies operate:
How do I make a protected disclosure?
If you wish to make a protected disclosure, you should obtain a copy of your agency's Internal Reporting Policy. This policy sets out the mechanism for making a disclosure to a person or persons within your agency and how that disclosure will be handled. You can also ring our office for advice on how best to raise your concerns.
If you do not feel comfortable raising your concerns with your agency, you can make a protected disclosure to:
• the NSW Ombudsman (about serious maladministration)
• the Independent Commission Against Corruption (ICAC) (about corrupt conduct)
• the Auditor-General (about serious and substantial waste of public money in State government agencies)
• the Director-General of the Department of Local Government (about serious and substantial waste of public money in councils)
• the Police Integrity Commission (about serious misconduct by police officers)
What is detrimental action?
The Protected Disclosures Act makes it a criminal offence to take detrimental action against a person substantially in reprisal for the making of a protected disclosure.
Detrimental action means action causing, comprising or involving any of the following:
- injury, damage or loss
- intimidation or harassment
- discrimination, disadvantage or adverse treatment in relation to employment
- dismissal from, or prejudice in, employment
- disciplinary proceeding.
If you have made a protected disclosure and you believe that someone has taken detrimental action against you in reprisal, you can complain to the person in your agency who deals with protected disclosures or your CEO, or you can complain to our office or the ICAC.
How the Ombudsman handles protected disclosures and complaints of detrimental action
If you work in the NSW public service and you complain to us about wrong conduct, we will look at your information and make a decision whether or not we are of the view that the complaint is a protected disclosure. We will tell you our view.
If we decide to treat your complaint as a protected disclosure, we will
- keep your identity confidential unless this is impractical or there are good reasons to reveal it (but we will discuss this with you first), and
- tell you within 6 months of receiving your complaint what we action we have taken or propose to take.
You should tell us if someone takes detrimental action against you because you have made a protected disclosure. We will look at your information to decide what action is appropriate. Please note that we cannot prosecute someone for doing this—this is a matter for you or the police. However, in appropriate circumstances, and where sufficient evidence is available, we can make recommendations that a person should be prosecuted.
Useful publications
Here is a list of useful publications on protected disclosures:
Other useful resources
Whistle While They Work
