PID e-News - June 2018 - Issue 36

Public Interest Disclosures e-News

June 2018 | Issue 36

Welcome

We welcome you to Issue 36 of our PID e-newsletter. We hope you enjoy the issue and find it to be informative. This issue brings to you news on the PID practitioner forum, presentation briefs from veteran speakers, National Investigation Symposium 2018, Corruption Prevention Forum 2018, acknowledging PIDs and much more.

Feel free to forward this newsletter to interested colleagues who can subscribe to receive the PID e-News directly through this link.

Regards
PID Unit

Contents

PID Practitioner Forum

Confidentiality

On 24 May 2018, 42 practitioners attended a PID Practitioner Forum held at the Sydney Mechanics School of Arts.The theme for this forum was ‘Confidentiality’ and practitioners heard from four speakers:

Chris Wheeler, Deputy Ombudsman - Confidentiality: it goes both ways
Andrew Garcia, Manager Assessments, ICAC - Confidentiality in handling PIDs
Ron Taylor, Director Governance and Information Requests, Department of Industry - External hotlines
Colin Formann, Director Corporate and Community Services, Gunnedah Shire Council - Managing confidentiality in a regional town

PID practitioner forum - speakers May 2018
Picture: L-R Colin Formann, Andrew Garcia, Ron Taylor, Chris Wheeler

Practitioners enjoyed the forum and found the four presentations useful and based on practical experiences.

The regional case study received particular praise and many practitioners appreciated the thought provoking issues raised.

For details on each presentation, please refer to specific articles in this newsletter.

Real-time survey

PID practitioners engaged with new ‘real-time’ software Mentimetre. Lots of positive feedback was received about this new technology and we anticipate it will be used in the future.

The following questions were asked of the audience (their responses identify interesting views):

Question:

What word springs to mind when you think of ‘confidentiality”?

[33 responses]

Question:

In your experience, how often can the identity of a reporter be kept confidential?

[37 responses]

Image of how often can the identity of a reporter be kept confidential

Question:

How have you dealt with a PID while maintaining confidentiality?

[16 responses]

Image of How have you dealt with a PID while maintaining confidentiality

Question:

What is the likelihood of each of these occurring?

[32 responses]

what is likelyhood of keeping identityof reporter confidential for web

Question:

How often do you document the likelihood of keeping the identity of the reporter confidential?

[36 responses]

How often do you document the likelihood of keeping the identity of the reporter confidential?

Confidentiality: it goes both ways

A presentation by Chris Wheeler at the PID Practitioner Forum on 24 May 2018

The long held and widespread view has been that the best form of protection for a reporter is confidentiality. This is often the first thing reporters themselves will ask about. The reason is obvious: if no one knows you reported, you cannot suffer reprisals.

Where a member of staff has reported wrongdoing, if practical and appropriate, it is certainly best practice that confidentiality be maintained by the agency, all responsible staff and the reporter. There are three main things to keep confidential:

  1. the fact of the disclosure
  2. the identity of the reporter, and
  3. the allegations themselves (including individual’s names).

In some cases, it may be possible to keep all three confidential and still handle the disclosure effectively. Certainly this would provide the most effective protection for a reporter.

Depending on the nature of the issue alleged and the evidence needed to investigate it, possible options of actions that allow a disclosure to be appropriately addressed, without the need to disclose that a PID has been made or to alert any individuals who may be involved to the existence of the disclosure or the investigation, might include:

  1. Collecting relevant information through discrete after-hours inspection of premises, individual offices, or physical files; or accessing and inspecting electronic records, including emails, use of internet, etc. - the possibility of such inspections should be referred to in the organisation’s policy on the use of electronic communication devices.
  2. Enlisting line management to ‘accidentally’ find relevant documents or identify relevant practices as part of their normal general supervisory or management functions.
  3. Using internal audit resources to do a random audit of an area, process or activity, of which the issue raised in the disclosure is only one part i.e. ‘false flag’ audits.
  4. Adding the issue raised in a disclosure to matters already being looked at in relation to some other issue by internal audit or by management in some other context.
  5. Commencing an investigation that is stated to be into a broader or related issue i.e. ‘false flag’ investigations.
  6. Refusing to identify the source of the originating or triggering information, and treating the reporter the same as all other witnesses.
  7. Referring a disclosure to an investigating authority who may be in a position to investigate the issue as part of some other broader or related investigation that is currently on foot or planned.

A common misunderstanding is that the PID Act requires public authorities to always keep the reporter’s identity confidential. This is not the effect of section 22 of the PID Act, which provides several broad exceptions to maintaining confidentiality.

In practice, there are a number of problems with an expectation that confidentiality will protect reporters:

  1. Firstly, an organisation may not be able to realistically guarantee confidentiality because it is often not difficult to surmise who made certain allegations. The information contained, or issues raised, in the disclosure can readily be sourced to the reporter.
  2. In many cases, the reporter will have previously telegraphed their concerns about an issue, or their intention to report, before making a formal disclosure.
  3. It is often difficult to make even preliminary enquiries into allegations without alerting someone in the organisation to the fact that allegations have been made.
  4. Related to the investigation process, to ensure procedural fairness, anyone who is the subject of allegations must be given an opportunity to answer them and enough information to be able to reasonably respond.
  5. The reporter may themselves compromise confidentiality by discussing matters under investigation openly in the workplace, for example as part of ongoing workplace conflict.
  6. Finally, even if the agency is able to take all measures to ensure confidentiality, there is no way it can be certain those measures have succeeded. Human error and indiscretion cannot be discounted. The agency may not be aware or be able to predict that certain information they think can be revealed (e.g. allegations that certain systems are failing) is sufficient to identify the reporter. Someone may have simply seen the reporter approaching management to report his/her concerns.

Where confidentiality is not a realistic possibility, there are two options available to an agency:

Option 1 - Re-active management:
The ‘head in the sand’, ‘hope for the best’, ‘don’t admit we have a disclosure’ approach. Such secrecy may in fact be counter-productive, fuelling suspicion and inflaming underlying conflict.

Option 2 - Pro-active management:
Take control of the situation and take steps to prevent reprisal.

It is important that agencies determine at the outset the likelihood of the identity of the reporter being disclosed or remaining confidential. When a report is received, there needs to be a conversation with the reporter to find out whether they have previously raised their concerns in the workplace, whether they have told anybody about their intention to report, or whether for any other reason their involvement will be deduced once the fact the report has been made becomes known in the workplace. Reporters should also be aware that they may somehow be identified in the course of any inquiries and that they should prepare themselves for this possibility.

If confidentiality is not a realistic and appropriate option, then consideration should be given to the steps that should be taken to ensure the reporter is adequately protected from reprisal as part of a risk assessment process.

Equally, any assessment of risks should also consider whether the subject/s of any allegations are at risk of adverse consequences, or there are concerns about the conduct of the reporter.

While many reporters act appropriately and in accordance with the standards set in codes of conduct, some do not. A small number of problematic cases may damage the reputation of the entire system for managing PIDs, undermine confidence in the internal reporting system and deter people from reporting wrongdoing.

Reporters should be told about the importance of limiting discussion about the matter, and not drawing attention to themselves or the report. We have seen cases where reporters behave in a manner inconsistent with the public interest. Often this behaviour is very challenging for agencies to manage because they are uncertain of what management action can be taken against the reporter. In fact, without prompt and effective intervention, the reporter’s conduct may escalate.

It is important that all parties involved in the internal reporting process, including reporters, are aware of their ethical and professional responsibilities. Public authorities can expect reporters to keep the matter – including the report, allegations, investigation, outcome and their identity – confidential by only discussing it with those nominated to deal with it or provide support.

It is also reasonable that reporters:

- treat the subject of the report with courtesy and respect,
- continue performing their day-to-day functions and responsibilities, and
- ensure they have complied with the pre-conditions in the PID Act before making a disclosure to an MP or journalist.

We have encountered cases where reporters disclose confidential information to the media either before, or during, an investigation into the wrongdoing. There is a common perception that such leaking constitutes whistleblowing, when in fact they are very different acts.

Certainly, there will always be a legitimate role for public whistleblowing as a safeguard when disclosures to official channels fail to properly address or rectify the problem – but where do you draw the line? What should be the rules? When is unauthorised disclosure of information warranted? Who makes such judgements and how?

No organisation – government or private – can operate effectively if it is considered acceptable for any employee to decide, at their sole discretion, to disclose what they wish. It cannot be left to individual public officials, fuelled by any number of motivations, to make autonomous moral judgements about when the disclosure of official information is in the public interest. By enacting the PID Act, Parliament set out clear principles for when and how the disclosure of information by a public official services a sufficient public interest to warrant protection.

This is combined with independent adjudication by a court of when those principles are satisfied if a matter ever came to that. In doing so, it provides important procedural safeguards and accountability because of the significant impact such disclosures may have on the reputation of the subject of the allegations.

Without such an approach outlining what information can be disclosed to whom and when, more officials would simply resort to leaking information in ways that are more difficult to control and address.

Statutory recognition of the media and politicians as avenues for disclosure is also an incentive for agencies and management to effectively address concerns that are raised internally rather than ignore them.

Confidentiality in handling PIDs

Summary of a presentation by Andrew Garcia, Manager Assessments Independent Commission Against Corruption (ICAC), at the PID Practitioner Forum on 24 May 2018

Andrew commenced his presentation by asking the audience what steps they take to protect confidentiality in their public authorities. Andrew focused on the fact that organisations with efficient and effective processes are less likely to breach confidentiality at each stage of the reporting process.

  • When a public official observes wrongdoing and seeks to report it. For example, do staff know about the PID Act? Do staff know who they need to report wrongdoing to? Are staff aware of the importance of not flagging their intention to report?
  • When the public official reports the wrongdoing to a person nominated to receive it. For example, do nominated disclosures officers have the knowledge they need to recognise when a report is a PID? Do nominated disclosures officers know how and to whom a report should be escalated? Do nominated disclosures officers realise the importance of not discussing the issue with colleagues?
  • When the report is dealt with by the disclosures coordinator and their team. For example, do investigators (internal and/or external) have sufficient security controls? Are disclosures coordinators and/or investigators able to obtain necessary information from others in the organisation who understand the need for confidentiality?

Andrew concluded his presentation by clearly stating that organisations (and indeed PID practitioners) should never underestimate their ability to create a positive reporting culture through education of staff and having appropriate controls in place.

External hotlines

Summary of a presentation by Ron Taylor, Director Governance and Information Requests, Department of Industry, at the PID Practitioner Forum on 24 May 2018

Ron outlined events that occurred following a Four Corners report on 24 July 2017 about water breaches. As a result of the broadcast ‘Pumped: Who’s benefitting from the billions spent on the Murray-Darling?’ the Secretary called for an investigation into the matter and asked the question Why didn’t staff escalate internally instead of going to the media?

The Department of Industry sought advice both internally and from the NSW Ombudsman regarding setting up an external hotline (please see the next article Section 8 of the PID Act - Two views for more information and the specific views of the NSW Ombudsman and the Public Service Commission).

After considering this advice, the Department advertised and received 15 tenders to provide an external hotline service for a period of three years. This service allows reporters to elect whether their identity is disclosed to the Department. If the reporter wishes to remain anonymous, they are provided with a case number and PIN enabling reporters to be contacted, when required, including when finalising the matter and providing the reporter with appropriate information about the outcome of the report.

The Department calls this service ‘Speak Up’.

When you dial the ‘Speak Up’ hotline, you are greeted with the following message from the Secretary of the Department of Industry:

Hello, this is Simon Draper, Secretary of the NSW Department of Industry. Thank you for caring enough to Speak Up and report suspected corruption or misconduct – I give you my personal assurance that all reports made to this hotline are taken seriously and managed professionally.

I understand you may be worried making a report might have a negative impact on you - that is one of the main reasons we have set up this hotline as a separate, independent reporting pathway.

We have engaged KPMG under our Speak Up initiative to provide a safe and secure way for you to tell us what has gone wrong so we can fix it. You have the choice to remain anonymous; however, if you do provide your identity or contact details to KPMG, I can assure you they will not disclose your details to us without your permission.

The information you provide to KPMG on misconduct or corruption, however, will be given to me to decide what should be done. This information may then be shared with the police, law enforcement and investigative agencies, regulators, government departments and agencies, and the relevant Minister where necessary to investigate or report on the actions being taken.

For more information on how KPMG and the NSW Department of Industry will handle any personal information collected as part of this service, please refer to the Privacy statements on our websites.

Please hold for the next available KPMG Speak Up officer – they will take your call and help with any questions or concerns you may have. Thanks again for Speaking Up.

Ron Taylor stated that the ‘Speak Up’ hotline to date has received allegations of bullying and one report about another agency (which was referred to that agency). The hotline has not yet encountered any anonymous PID reports.

Section 8 of the PID Act - Two views

There are two contrasting legal views on the use of external hotlines receiving PIDs on behalf of a public authority because of the meaning of ‘officer’ in the PID Act (section 8). One view is held by us, and the second is held by the Public Service Commission. These two views are explored in this article.

The comments in this article should be seen as advice for information only. Public authorities should form their own view about external hotlines including seeking appropriate legal advice.

VIEW 1 - NSW Ombudsman

Can a contractor receive a disclosure under the PID Act?

The PID Act allows some disclosures to be made to an ‘officer’ of a public authority or investigating authority (PID Act authority), provided the disclosure is made in accordance with any procedure established by that authority: s 8(1)(c).

Our view on this issue has changed over time. While the matter is not free from doubt, our view is that s 8(1)(c) allows a disclosure to be made to a contractor engaged by a PID Act authority: for example, a person engaged to operate a ‘hotline’ for the authority.

This view is based on

  1. the definition of ‘officer’ in the Government Sector Employment Act 2013 (GSE Act)
  2. the PID Act definition of ‘public official’, and the relationship between ‘public officials’ and ‘officers’
  3. the fact that s 8(1)(c) allows a disclosure to be made to an authority in accordance with a procedure established by the authority, and
  4. the remedial/beneficial nature of public interest disclosure legislation.

1 Definition of ‘officer’ in GSE Act

‘Officer’ isn’t defined in the PID Act, but GSE Act s 59(1) interprets ‘officer’ to mean the following:

In any other Act . . . . .

‘a reference to an officer or employee, or a member of staff, of a statutory body or statutory officer is to be read as including a reference:

(a) to a Public Service employee who is employed to enable the statutory body or statutory officer to exercise functions, and

(b) to any other person whose services the statutory body or statutory officer makes use of (whether by way of secondment or otherwise).

So if a PID Act authority is a statutory body or statutory officer, someone who is contracted to provide services to them is an ‘officer’ of that authority.

The GSE Act does not define ‘statutory body’ or ‘statutory officer’. Nor is there any commonly accepted definition of these terms in NSW legislation. Some PID Act authorities are described as ‘statutory officers’ in the legislation that creates their office,1 but apart from those circumstances there is no legislative guidance2. Nor is there any assistance in NSW (or Australian) case law.

Given the absence of a common definition of ‘statutory body’ or ‘statutory officer’, our view is that these expressions bear their ordinary, everyday meaning: a statutory body is a body constituted or created by statute, and a statutory officer is a person holding an office created by statute.

It follows that GSE Act s 59(1) is capable of applying to the definition of ‘officer’ in s 8(1)(c). This means an officer can be any person whose services a PID Act authority makes use of – including a contractor.

This interpretation is supported by the argument in 2 below.

2 Definition of ‘public official’ and relationship drawn between ‘public officials’ and ‘officers’ in the PID Act

The PID Act provides that a ‘public official’ can be a private individual in certain circumstances3.

The wording of the PID Act also makes clear that a ‘public official’ is an ‘officer’.

Section 8(1)(c)(i) allows a public official to disclose to ‘another officer’ of the PID Act authority to which the public official belongs. The word ‘another’ would only make sense here if the public official is himself or herself an ‘officer’ of that authority.

Compare s 8(1)(c)(ii), which applies where the public official is making a disclosure to an authority to which the public official does not belong; in that case, the words ‘an officer’ are used in place of ‘another officer’.

It follows that:
(a) if a ‘public official’ can be a private individual for the purposes of the PID Act, and
(b) a public official is considered to be an ‘officer’ under the PID Act, then
(c) an ‘officer’ can be a private individual.

3 Section 8(1)(c) allows an authority to create its own procedure for disclosure to an officer

Even if the arguments in 1 and 2 are not accepted, and an ‘officer’ cannot be a contractor, section 8(1)(c) provides that disclosure can be made ‘in accordance with any procedure established by the public authority or investigating authority’.

Note also that the PID Act gives the Ombudsman power, under s 6D(2), to ‘adopt guidelines for the procedures of public authorities for receiving, assessing and dealing with public interest disclosures’, including a ‘model policy that provides for those procedures’.

Nothing in the PID Act restricts the type of procedure that a PID Act authority might adopt under s 8(1)(c), or the guidelines we might adopt under s 6D(2). Presumably that procedure, or those guidelines, could provide for disclosures to be received by a contractor or another intermediary with an obligation to convey the disclosure to an officer.

If the Legislature had intended to prevent this from happening, presumably it would have been made clear.

4 The remedial/beneficial nature of public interest disclosure legislation

This argument is relevant both to the arguments made in 1 and 2 and the argument in 3. Public interest disclosure legislation is remedial (or beneficial) legislation4. Remedial legislation ‘gives some benefit to a person and thereby remedies some injustice’5. Ambiguities in remedial legislation are interpreted so that they give ‘the fullest relief which the fair meaning of its language will allow.’ 6

Having regard to the points made in 1-3 above, and the need to give the PID Act a ‘generous construction’7 or a ‘fair, large and liberal’8 interpretation, the better view is that section 8(1)(c) permits disclosure to be made to a person engaged by contract to receive disclosures on behalf of a PID Act authority.

5 Implications for accepting a narrow interpretation of s 8(1)(c)

The alternative interpretation of s 8(1)(c) is one where:

(a) ‘officer’ does not include a contractor, and

(b) neither a PID authority nor the Ombudsman is permitted to have a procedure that provides for disclosures to be made to a contractor on behalf of an officer.

This interpretation would place a reporter in a difficult position. He or she would need to verify the employment status of the person with whom they are communicating before they make their disclosure, or run the risk that their disclosure will not be protected.

It would also, potentially, place a PID authority in a difficult position. It would restrict its ability to formulate procedures for the receipt of disclosures. It would also mean disclosures that are inadvertently received by someone other than an ‘officer’ (in the narrow sense), might not be protected.

More generally, the narrow interpretation creates difficulties for disclosures generally. Disclosures will not always be made directly and personally to the person to whom they are directed. A written disclosure to a principal officer of a PID authority will commonly be opened first by the principal officer’s executive assistant. A PID authority with a particular mail policy may have all letters opened by administrative staff. In these circumstances, it cannot be guaranteed that the disclosure will not be transmitted through a ‘conduit’ of some kind.

Foot notes:

  1. For example, the Auditor-General, Ombudsman, Inspector of the ICAC and Information Commissioner, all of whom are authorities for the purposes of the PID Act, are described as ‘statutory offices’. The headings to some of these provisions also refer to these entities as ‘statutory officers’. While headings to legislative provisions do not form part of the legislation (Interpretation Act 1987 s 35) headings may be used as extrinsic material to be used as an aid to interpreting those provisions: Interpretation Act s 34.
  2. The Interpretation Act does not define either term. The Constitution Act 1902 s 47A uses the term ‘statutory body’ in a way that makes clear that it both includes and extends beyond entities that are ‘NSW Government Agencies’, and may include State-owned corporations.
  3. See PID Act s 4A(1)(c) (where a corporation is engaged by a public authority under a contract to provide services to or on behalf of the public authority, ‘public official’ includes ‘an employee or officer of the corporations who provides or is to provide the contracted services or any part of those services’). See also Nichols v Singleton [2011] NSWSC 946 at [26] where it was noted that the definition of ‘public official’ clearly extended beyond employees. This case related to an earlier version of s 4A, but is equally applicable to the current version of that provision.
  4. Jones v University of Canberra [2016] ACTSC 78; Reeves-Board v QLD University of Technology [2001] QSC 314.
  5. Estate of McComb [1999] 3 VR 485 at [22].
  6. Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384.
  7. Waters v Public Transport Corporation (1991) 173 CLR 349 at 394.
  8. IW v City of Perth (1997) 191 CLR 1 at 39.

VIEW 2 - Public Service Commission - Interaction between GSE Act and PID Acts

Summary of advice from Crown Solicitor’s Office to Public Service Commission:

1.1  You seek my advice as to whether s 59(1)(a) of the Government Sector Employment Act 2013 (GSE Act) has the effect of requiring the reference in s 8(1) of the Public Interest Disclosures Act 1994 (PID Act) to an “officer” of a “public authority” to be read as including private contractors engaged by a Public Service agency and/or local government authority for the purpose of receiving public interest disclosures (PIDs).

2.1  In my view, a “Public Service agency” is not a “statutory body” within the meaning of the GSE Act. Section 59(1)(a)(ii) of the GSE Act therefore has no application in circumstances where the relevant “public authority”, for the purposes of s 8 of the PID Act, is a “Public Service agency”.

3.1  I do not think that the reference in s 59(1)(a) of the GSE Act to “any other person whose services the statutory body or statutory officer makes use of (whether by way of secondment or otherwise)”, properly construed, applies to private contractors. Therefore, even if a “local government authority” could constitute a “statutory body” within the meaning of the GSE Act, I do not consider that s 59(1)(a) requires or authorises the reference in s8(1) of the PID Act to an “officer’ of a “public authority” to be read as including private contractors.

4.1  Please note this is a summary of the central issues and conclusions in my advice.

Update on PID Act Review

In April, the government tabled their response to the Parliamentary Joint Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission’s review of the PID Act. It committed to preparing a Bill to simplify the PID Act, improve remedies for reprisal, refine reporting requirements and clarify the PID Act.

One of the recommendations that came out of the PID Act review is to change who can be considered a public official for the purposes of making a PID. The intent behind this recommendation was to address the fact that government functions are increasingly being performed by the private companies or NGOs, and these staff essentially performing government functions cannot access the protections their colleagues employed in the public sector are afforded.

The PID Steering Committee, an advisory body established under the PID Act to provide advice to the Premier on its operation, is keen for us to conduct research to explore this issue further including determining who would be captured and how best to operationalise any possible changes.As part of this research, we would be interested to hear from PID practitioners about your experiences in dealing with PIDs made by contractors, including:

- Whether you have received PIDs from contractors

- How you protect contractors and investigate their reports

- Any benefits or difficulties you have experienced while dealing with a PID made by a contractor.

We encourage you to email or call the PID Unit on 02 9286 1000 with your thoughts and experiences.

Counting PIDs

The office’s Guideline C2: Reporting to the NSW Ombudsman provides some general guidance that may be helpful when considering how many PIDs to report to this office. The following scenarios may be useful:

- If multiple reporters make the same PID in the same disclosure (i.e. the same letter or email) then this is counted as 1 PID.

- If multiple reporters make the same allegations via different disclosures (i.e. different letters, separate interviews with disclosure officers) then these are all separate PIDs.

- If one reporter makes a disclosure about two separate public officials or subjects engaging in the same conduct, then this is one PID.

If a PID is referred under the provisions of section 25 of the PID Act, then the responsibility for handling the matter passes to the agency receiving the referral and the agency will also need to count this as a PID received by it for the purposes of the reporting to this office. However, in cases where the ICAC refers the matter to the agency under the provisions of the ICAC Act, but not under the PID Act, the obligation for handling the PID does not pass to the agency it was referred to and similarly, the agency does not need to count these matters in their reports to us. If the agency does report them then this will lead to double counting as the ICAC will also count them in its reports to us.

The number of PIDs reported by public authorities in NSW is low compared to those reported in other equivalent jurisdictions. One issue that we have identified through our complaint handling and audit work is that there are reports made by public officials that satisfy the criteria in the PID Act but are not categorised as PIDs. This often occurs because the reports are not identified as PIDs and/or because the reporter is not referred to a Disclosures Officer, the Disclosures Coordinator or the Principal Officer of a public authority to make the PID. We review 'internal reports of wrongdoing' as part of our audits to assist agencies to identify if there are gaps in their procedures for triaging internal complaints that result in matters that could constitute PIDs not being identified as such.

Acknowledging PIDs

The PID Act requires that each public authority’s PID Policy must provide:

'that a copy of the policy and an acknowledgment, in writing, of the receipt of the disclosure is to be provided to a person who makes a public interest disclosure, within 45 days after the person makes the disclosure’.

As a matter of best practice an acknowledgement letter should contain the following information:

- Written acknowledgement of receipt of the report.

- The name and contact details of a person who they can contact for information regarding the progress of the matter.

- A request not to discuss their report with anyone, particularly anyone who may be involved in the investigation.

- Information about the action that is to be taken on their report.

- The likely timeframes for any decisions regarding the action to be taken on the report.

- Information about support options within the organisation available to the internal reporter to assist them with any concerns during the process.

- Information about external organisations and services that the internal reporter can access for support.

Case Law - Maintaining confidentiality/secrecy

Summersford v Commission of Police [2018] NSWCA 115
Comments by Chris Wheeler, Deputy Ombudsman

You may have seen a recent media report titled Police officer who flicked colleagues' genitalia loses court appeal. From my reading of the judgment in this case, a lot rode on its particular facts and circumstances, including:

  • the relevant provisions of the Police Service Act and Regulation concerning maintaining confidentiality/secrecy as to the identity of persons making allegations about the conduct of police officers,
  • the fact that each of the witness statements that the investigator relied on were put to the subject of investigation verbatim, and
  • the Appeal Court’s view that the subject of investigation clearly understood the allegations made against him (as indicated by his response to each of the sustained allegations).

That said, the Summersford judgment:

  • does not support the argument in the Vega v Vega v Hoyle [2015] QSC 111 judgment that information should have been disclosed that may be favourable (i.e. exculpatory) to the subject of investigation (Vega Vega was a single judge QLD decision which does not appear to have been followed by any other Australian court, while the Summersford case is a decision of the NSW Court of Appeal),
  • refers to a decision where the High Court found that in identifying the content of procedural fairness: ‘it is necessary to recognise that there is a public interest in ensuring that information which has been supplied by an informant is not denied to the executive when making its decisions’ (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72).

The central question is whether the decision-maker: '[alerted the person] entitled to be heard to the questions or 'critical issues' to be addressed . . .  where the rules of procedural fairness apply to a decision making process, the party likely to be directly affected by the decision is to be given the opportunity of being heard. (Summersford at [52]).

So in summary, while the circumstances of the two cases are significantly different, the judges in this case appear to have adopted a narrower approach to the scope of procedural fairness than the single QLD judge in Vega Vega.

Events and forums

World Whistleblowing Day - 23 June

June 23 was World Whistleblowing Day. It was an opportunity to reflect on those employees who serve the public interest by shining a light on serious wrongdoing.

The importance of whistleblowing is clear. It can save public funds and even lives.

Thirty years ago, Queensland police whistleblowers faced physical intimidation when they exposed widespread corruption that triggered the Fitzgerald Inquiry, leading to the first legislation that provided legal protections for whistleblowers in Australia.

More recently, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was prompted by a series of whistleblowers, such as those exposing corrupt financial advice practices at the Commonwealth Bank and the NAB, or the artificial declining of medical claims at CommInsure.

A reporter from the NSW public sector plays no less of an important role in exposing wrong conduct and building public trust in government.

Research continually shows fraud and other wrongdoing is generally unearthed by reports or tip-offs – most commonly by staff. For example, the NSW Audit Office’s 2016 fraud survey found that tip-offs accounted for almost half (47%) of frauds detected, while the Public Service Commission’s 2017 People Matter Employee Survey found that 63% of respondents who had witnessed misconduct/wrongdoing at work in the last 12 months reported it.

Applying from 1 July 2018, NSW Treasury Circular TC18-02 NSW Fraud and Corruption Control Policy requires all state government agencies including state owned corporations to develop, implement and maintain a fraud and corruption control framework to prevent, detect and manage fraud and corruption.

Having a robust internal reporting system – supported by a policy, processes and staff awareness – is one of the most effective ways that agencies can deter and detect serious wrongdoing.

National Investigation Symposium 2018

Registrations are now open for the 12th National Investigations Symposium (NIS), to be held on Wednesday 15 to Thursday 16 November at the Four Seasons Hotel Sydney. Since it began in 1996, this premium biennial event has attracted the participation of several hundred delegates from across Australia and abroad.

The two-day symposium is an opportunity for a range of practitioners – including investigators, internal auditors, lawyers, senior police officers and complaint-handlers – to increase and share their investigative knowledge, skills and techniques. The NIS also offers networking opportunities that allow delegates to foster and establish new contacts and maintain existing ones, and while accessing the latest products and services from the exhibitor stalls.

The NIS is a joint initiative of the NSW Independent Commission Against Corruption, the NSW Ombudsman and the Institute of Public Administration Australia NSW.

For information about the symposium, registration and early bird discounts click here. To view the program, click here.

Corruption Prevention Forum 2018

The Corruption Prevention Network of NSW (CPN) came into being in 1994 when practitioners together with officers from the Independent Commission Against Corruption (ICAC) and Audit Office began meeting to consider how best to address systemic issues repeatedly exposed in internal and external investigations. Since that time the CPN has evolved into an incorporated body operating through an organising committee of elected volunteers.

The CPN’s primary purpose is to support anti-fraud and corruption practitioners throughout the state of NSW, to better understand the current issues and techniques in today’s market place and bridge the gap between public and private sectors by highlighting risks that span both industries.

Every year the CPN host a forum which allows delegates to share their knowledge and network with other professionals. The CPN 2018 Forum Decoding the Corruption Puzzle will be held at Dockside Pavilion, Balcony Level, Cockle Bay Wharf Darling Harbour on Tuesday, 4 September 2018.

Your feedback and suggestions for future issues are welcome.
Email pid@ombo.nsw.gov.au or call 02 9286 1000.

You have received this email because you have subscribed to receive PID newsletters. If you would like to opt out of these emails, use unsubscribe link.

Search publications

I am looking for:

In the publication category: