Major overhaul of whistleblower protection laws in NSW
19 Oct 2021
In a report tabled in Parliament today, the NSW Ombudsman has welcomed the introduction of a bill that re-writes the State’s whistleblower-protection laws.
“The willingness of public officials to come forward and report wrongdoing when they see it is essential to maintaining integrity and public confidence,” the Ombudsman, Paul Miller said. “The current law is overly technical and complex. It requires the public official to navigate a legal minefield.”
“What is needed is a cultural shift, where speaking up in the public sector is an easy, normal and safe thing to do,” Mr Miller said. “That requires laws that make it is simple as possible for public officials to report wrongdoing. And those laws need to impose clear duties on agencies to deal with the alleged wrongdoing, as well as to take practical and pro-active steps to support and protect the person who has reported it.”
The new Public Interest Disclosures Bill 2021, introduced to the NSW Parliament last week, states as one of its objectives “to promote a culture in which public interest disclosures are encouraged”.
The Bill responds to the recommendations of the 2017 Parliamentary Ombudsman Committee.
The new Bill is a complete rewrite of the 1994 Public Interest Disclosures Act 1994 (NSW).
The Ombudsman’s report, tabled today, assesses the Bill against the 38 recommendations made by the Parliamentary Ombudsman Committee, as well as further recommendations made by the Parliamentary ICAC Committee in a separate report in 2018.
The Ombudsman’s report explains how the new Bill addresses many of the weaknesses in the existing PID Act.
It notes that the Bill is simpler and easier to navigate and contains fewer ‘trip hazards’ for would-be whistleblowers. For example, as well as being able to report to the head of their agency or to agency-nominated ‘disclosure officers’, an official can report a public interest disclosure to their own manager.
Whistleblowers will also be able to report wrongdoing directly to any integrity agency. Those integrity agencies will be required to ensure that the report is referred on, if necessary, to the most appropriate agency to deal with it.
The Bill also:
- extends protections to cover those who are involved in the investigation of public interest disclosures, including both witnesses and those who are conducting the investigation
- imposes additional obligations on agencies to adopt whistleblowing policies and ensure that all staff and managers receive training
- provides for more comprehensive reporting to the Ombudsman, as well as publicly, about the number of disclosures received and how they have been dealt with.
All recommendations bar one implemented
“I am very pleased to confirm that the Bill substantially implements all but one of the Parliamentary Committee’s recommendations,” said Mr Miller.
The recommendation that has not been implemented relates to disclosures to journalists and members of Parliament.
In NSW, a public official can only make a public interest disclosure to the media if, at least six months earlier, they already made the disclosure through official channels and no appropriate investigation or action was taken.
However, to gain the protections of the legislation, the disclosure to the media must also be shown to be ‘substantially true’. The Parliamentary Committee recommended removing that additional threshold, so that an official who reports to the media will be protected provided they believed honestly, and on reasonable grounds, that their disclosure showed or tended to show serious wrongdoing.
The Ombudsman supported the Committee’s recommendation and considers the threshold for reporting public interest disclosures to the media remains too high.
“It is very rare for public officials to make public interest disclosures to the media,” the Ombudsman said.
“Most public officials prefer, for good reason, to report concerns about wrongdoing either within their agency or to one of the dedicated integrity agencies.”
“That said, there are rare occasions where reporting outside the system – to the media or to a Member of parliament – may be appropriate. This can be a last resort avenue where internal systems of accountability have failed, and in that way they serve an important public function.”
The PID Steering Committee supports the new Bill
“I am pleased to advise Parliament that, alongside the NSW Ombudsman, all members of the Public Interest Disclosures Steering Committee have indicated their support for the new Bill,’ said Mr Miller.
“We are confident that the Bill will better ensure that reports of wrongdoing are acted upon, and that reporters will be safer and feel more encouraged to come forward.”
The NSW Ombudsman will support agencies and public officials to implement the new laws
The Bill provides for a commencement date no later than 18 months after assent, a timeframe supported by the Ombudsman.
“All public sector agencies, statutory bodies and local councils, as well as contracted service providers, will be affected by this new legislation, and will need to develop and implement new policies and training,” said Mr Miller. “Before that can happen, detailed regulations as well as comprehensive guidance and training material will need to be developed.”
The NSW Ombudsman’s Office, which oversights the operation of the PID Act, will require significant new funding as part of this process, the report notes.
“The Government is aware that my office will require significant additional resources to prepare for that commencement, and to establish our ongoing enhanced oversight and reporting functions once the Bill is operational,” said Mr Miller.
The protections under the current PID Act will remain in effect until commencement of the new Bill.