New report: Whistleblowing in NSW depends on clear protections and open, reporting culture

15 Dec 2020

A NSW Ombudsman’s report on public sector whistleblowing shows that NSW public officials made 949 public interest disclosures (PIDs) to investigating authorities in the 2019-20 financial year.

Two thirds of those were made to ICAC by heads of public sector agencies who are required by law to report possible corrupt conduct. In addition, agencies received nearly 400 (383) reports of wrongdoing about their own agencies. Consistent with previous years, the majority (85%) of those included an allegation of corrupt conduct.

While the report shows that there were slightly fewer PIDs in 2019-20 than in 2018-19, the number of reports remains higher than earlier years, and is consistent with a long-term trend of increased reporting.

The figures are reported in the Oversight of the Public Interest Disclosures Act 1994 - Annual Report 2019–20 (the Report). Presenting the Report to Parliament today, Acting NSW Ombudsman Paul Miller, said: “This year’s report again shows how important it is for public officials to speak up when they see wrongdoing, and for them to be confident that, if they do, they will be supported.

“The Report also highlights the essential role of independent integrity bodies like the ICAC, the LECC and the Ombudsman in investigating reports of wrongdoing”.

The Report notes that a proposed Bill to reform the NSW Public Interest Disclosures Act is expected to be introduced by the Government. The reforms were recommended by a 2017 Joint Parliamentary Committee. In 2018, the NSW Government stated that it would prepare a Bill in accordance with the Parliamentary Committee’s recommendations.

“As the Parliamentary Committee observed, the NSW public interest disclosures legislation is the oldest in Australia, and despite piecemeal amendments over time, the current PID Act needs improvement,” said Mr Miller. “We appreciate that the drafting of the Bill is complex. We are also aware that progress on the draft Bill has been impacted by the COVID-19 pandemic. However, it is important the Bill be finalised as soon as possible. I look forward to new legislation that better supports a culture where public officials are encouraged to report serious wrongdoing with full confidence that they will be protected if they do so.”

The Ombudsman’s report includes a discussion of the limited protections available under the PID Act to whistleblowers who report directly to the media or to a Member of Parliament (MP).

Under the PID Act, a NSW public official who reports wrongdoing to the media will only gain protection under the PID Act if certain criteria are met. This includes that they must have previously made the same report either within their own agency or to an investigating authority. In addition, to be protected, the whistleblower’s disclosure to the media must be “substantially true”.

The Parliamentary Committee recommended that this “substantially true” requirement for disclosures to journalists and MPs be removed from the PID Act. It noted that this requirement creates a risk for public officials, that may dissuade them from reporting wrongdoing.

The NSW Ombudsman oversights the PID Act, including monitoring, auditing and reporting on the exercise of functions by public authorities under the Act. During the reporting period, the Ombudsman’s work included an external training program, review of public authorities’ PID policies, and following up on recommendations from the Ombudsman’s previous audits.

The PID Act, more commonly known as whistleblower protection legislation, encourages NSW public officials to report serious wrongdoing – such as corrupt conduct or maladministration – by providing them with certain legal protections.

In NSW, PIDs include voluntary whistleblowing, as well as reports of wrongdoing by public officials in their day-to-day roles (such as internal auditors) and reports that public officials are under a legal duty to make (such as evidence of corrupt conduct, which heads of agencies must report to the ICAC)

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