PID e-News - Nov 2017 - Issue 35

Public Interest Disclosures e-News

November 2017 | Issue 35

Welcome

We welcome you to Issue 35 of our PID e-newsletter. We hope that you enjoy the issue and find it to be informative. This issue brings to you news on a new template and guidelines on reprisal, the review of the PID Act, local Aboriginal land councils and the PID Act, a forum for union officials and much more.

Feel free to forward to interested colleagues. They can subscribe through the link.

Regards

PID Unit

New template and guidelines: Assessing the risk of and responding to reprisal

When it comes to staff reporting wrongdoing in the workplace, all public authorities have an obligation to manage the risk that these staff members may face detrimental action in reprisal for doing so. Our office has released a new template and revised guidance to assist authorities to identify, analyse, treat and monitor the risk of reprisals and any related workplace conflict, as well as responding to reprisal allegations when they are made.

Accurate and objective assessments of risk allow authorities to properly defend themselves against any future allegations of having failed to take adequate steps to protect a reporter from detrimental action in reprisal for a PID. In an audit that we conducted on the handling of allegations of reprisal, we found that a risk assessment was warranted in each case and would have assisted the authority in managing and preventing reprisals from occurring.

A risk assessment process helps determine the level of protection and support that is appropriate for a reporter. Undertaking the assessment as soon as possible after a report of wrongdoing is made gives the authority the best chance of preventing or containing problems. It should include identifying and assessing direct risks of detrimental action in reprisal for reporting wrongdoing, as well as indirect but related sources of workplace conflict or difficulties.

We also have a new guideline providing advice to public authorities on responding to allegations of detrimental action in reprisal for the making of a public interest disclosure. Authorities need to assess and respond to allegations of reprisal effectively and efficiently, as this conveys to staff that the behaviour will not be tolerated.

Published guidance on the topic Supporting and protecting reporters includes the following guidelines:

Guideline D1: Internal reporter support strategy
Guideline D2: Information, advice and feedback to internal reporters
Guideline D3: Internal reporters involved in wrongdoing
Guideline D4: Preventing and containing reprisals and conflict
Guideline D5: Responding to allegations of reprisal guidelines 
Guideline D6: Finalisation and follow-up

Some of the steps for assessing risk are outlined below.

  • Talk to the reporter – What are the reporter’s expectations of the process and do they have any concerns about reprisal or conflict?
  • Identify the risks – Are there factors that may cause reprisals or conflict to be problems in the workplace? Higher risk indicators include:

    poor workplace culture
    history of conflict
    confidentiality is unlikely to be maintained
    the wrongdoing reported is significant
    the reporter is in a vulnerable position.
  • Analyse or evaluate risk – What is the likelihood and potential consequence of reprisals or workplace conflict occurring?
  • Treat risks – What strategies should to be implemented to prevent or contain reprisals or conflict? For example, this may include:

    verifying the work performance of the reporter as soon as possible after the PID is made
    appointing a support person
    proactively managing the workplace to prevent conflict, manage or manage existing conflict
    ensuring any employment-related decisions are made independently.
  • Monitor and review – Have the strategies been implemented and were they effective in preventing or containing reprisals or conflict?

Our PID Risk Assessment template can be used by authorities to document this process.

For further advice, see Guideline C4: Assessing Risk of Reprisals and Conflict or contact the PID Unit on pid@ombo.nsw.gov.au or 02 9286 1000.

Review of the PID Act

In October, the Joint Parliamentary Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission tabled their report on the review of the Public Interest Disclosures Act 1994 (PID Act). While noting that, on the whole, the public interest disclosure regime works well, the report makes 38 recommendations to improve elements of the system. The recommendations focus on simplifying the disclosure process, improving remedies for detrimental action, refining reporting requirements and providing clarification to the PID Act.

'The changes we’ve recommended aim to make the Act simpler and improve protections for whistleblowers', said Lee Evans MP, Chair of the Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission.

For example, the Committee recommended that:

  • The PID Act be redrafted in simpler language and with a clearer structure, while maintaining its substance.
  • To address the gaps or technicalities in the legislation that can cause people who make disclosures to miss out on protections, the PID Act be amended to protect reporters who make a disclosure to the wrong public authority, and that public authorities be required to nominate a sufficient number of employees to receive public interest disclosures.
  • Reporters can be deemed to be a public official for the purposes of the Act so that protection can be afforded to people who become aware of public sector wrongdoing but are not covered by the Act – e.g. former public officials, subcontractors or public officials from other jurisdictions.
  • Disclosures to a wider range of people and bodies be protected, such as the Privacy Commissioner, Ministers when the disclosure relates to their portfolios, and principal departments within clusters. Misdirected disclosures should also be protected, if the reporter believed they were making it to the appropriate public authority.
  • The head of a public authority must ensure that the authority establishes a procedure to assess the risk of detrimental action, and that our office is notified when allegations of detrimental action are made so that they can assist the authority in handling it.
  • To alleviate unnecessary administrative burdens on public authorities, reporting to our office only be required annually instead of every six months and more information on outcomes and purported PIDs is provided in these reports. Public authorities would no longer be required to include information in their own annual report.
  • The PID Act states that reasonable management action is not detrimental action, and specifically exclude individual employment related grievances.
  • Public officials be required to use their best endeavours to assist a PID investigation.
  • Role reporters and witnesses are considered to have made a PID only for the purposes of protection. Other requirements of the PID Act, such as reporting on these matters, would not apply.
  • The threshold for external disclosures to the media or MPs be lowered.
  • Reporters should be able to claim for any remedy, including exemplary damages, if they are found to have experienced detrimental action, and should not have to pay the costs of such proceedings.
  • The criminal offence provision be amended to remove the word ‘reprisal’ and so that the making of a PID is only a contributing factor to the taking of detrimental action.

We welcome the Committee’s report and look forward to the government’s response - due by 23 April 2018. We will work with public authorities to implement any changes to the PID Act when they occur.

Local Aboriginal land councils and the PID Act

There are 120 local Aboriginal land councils (LALCs) located across NSW. Under section 50 of the Aboriginal Land Rights Act 1983 (ALRA), a LALC is constituted as a statutory corporation in respect of each local Aboriginal land council area. The network of LALCs was established to 'improve, protect and foster the best interests of all Aboriginal persons within the Council’s area and other persons who are members of the Council' (s 51, ALRA). LALCs have vast differences in resources, financial status and activities.

To date our office has interpreted ‘public authority’ to include any agency or person that falls within what might be termed the jurisdiction of an investigating authority under the PID Act. As the Ombudsman is an investigating authority under the PID Act, we have taken the view that a public authority for the purposes of the PID Act includes, although is not limited to, agencies or persons falling within the definition of a public authority in section 5 of the Ombudsman Act 1974. However, questions have been raised about whether LALCs fall under the Public Interest Disclosures Act 1994 (PID Act).

With community consultation in mind, our office as the secretariat for the PID Steering Committee prepared a discussion paper on the topic. The discussion paper will soon be sent to key stakeholders including NSW Aboriginal Land Council. If you would like to read the discussion paper and provide comment or feedback on the issues covered, please contact Katherine Whitworth on pid@ombo.nsw.gov.au or 02 9286 1000.

Forum for union officials

Our office has made contact with Unions NSW with a view of holding a forum for union officials early in the new year. Reporting wrongdoing can be a difficult and stressful process for all involved. Reporters and subjects of allegation alike often require advice and support from someone they view as independent of their agency. Unions often fill this important role.

Likely topics of discussion will include:

  • The role union officials play in recognising when members have concerns that may be PIDs and providing accurate advice to members on how to make a PID.
  • The interaction between PIDs and workplace grievances, and PIDs made in the context of complex workplace conflict or restructure.
  • The development of a factsheet providing PID related information to union officials.
  • How to manage situations in which both the reporter and the subject of allegations approach the union for advice and assistance.

We would be interested to hear of any issues you would like discussed at the forum or that could inform the creation of a factsheet for union officials. If you would like to provide any comments or suggestions please contact Katherine Whitworth on pid@ombo.nsw.gov.au or 02 9286 1000.

Australian Public Sector Anti-Corruption Conference
14–16 November 2017, Sydney

Australia’s premier anti-corruption forum returns to Sydney in November 2017. Join more than 70 local and international leaders and practitioners in corruption mitigation and exposure. Increase your understanding and capacity to enhance and maintain corruption resistance in your organisation.

Our office is an APSACC 2017 partner agency.



PID practitioner forum

The PID Unit will be hosting a forum for PID Practitioners on Monday, 11 December 2017, from 10.00 am to 12.00 noon.

The theme for this forum is Providing Support—Interactions with key stakeholders during and after a PID.

Mark your calendar!

The next PID Practitioner Forum will be held on

Monday, 11 December 2017 from 10.00am to 12.00 noon.

Invitations will be sent to practitioners in November.

We would be interested to hear of any issues you would like discussed at the forum or that could inform the creation of a factsheet for union officials. If you would like to provide any comments or suggestions please contact Katherine Whitworth on pid@ombo.nsw.gov.au or 02 9286 1000.

PID reporting hotlines

Many private sector organisations contract external consultants to operate an anonymous hotline to receive reports of wrongdoing. Some public authorities have also proposed adopting this model. In the past we have advised agencies the PID Act will only apply to a report of wrongdoing made to a hotline if the person receiving the report is:

  • an officer of the same public authority as the reporter, or
  • an officer of the public authority that the report is about – see section 14(2) of the Act.

The person, receiving the report, must also be nominated in the authority’s internal reporting policy. We’ve previously interpreted this to mean that reports of wrongdoing made to hotline operators employed by external providers are not PIDs under the PID Act, even if they are then referred to the authority to handle.

In response to an enquiry from an authority, we sought legal advice and are now of the view that reports of wrongdoing received by an external provider could be classified as PIDs under the PID Act. This arises out of how 'officer' is defined in the Government Sector Employment Act 2013 (GSE Act) and would thus only apply to public authorities captured under the GSE Act.

When an authority uses an external provider, the authority remains responsible for assessing whether reports are PIDs, taking action in response to reports and protecting the reporter. This includes conducting risk assessments on anonymous reports received through the hotline as there could still be a risk of reprisal if the reporter can easily be identified. There may be a low risk of reprisal in situations where the report could have emanated from a number of people. However, sometimes the nature of a report or the fact that concerns have previously been raised locally will effectively reveal the identity of the reporter, even if the report is made anonymously.

PID annual reporting

Don't forget - You must provide a copy of your annual report to our office.

Section 31 of the PID Act provides that public authorities must prepare an annual report about PIDs within four months after the end of their authority’s reporting year.

This should be part of each state agency’s publically available annual report, prepared under the Annual Reports (Departments) Act 1985, Annual Reports (Statutory Bodies) Act 1984.
For most authorities who report on a financial year basis this is 31 October 2017.

Local councils, who prepare an annual report under the Local Government Act 1993, have until 30 November 2017 to provide their report.

The report must be submitted to the Minister responsible for your authority for tabling in Parliament, and the information to be provided is the same that is included in your six monthly reports to our office.

A copy of the report must be sent to the NSW Ombudsman. We suggest that authorities meet this requirement by emailing a link of the report on your website to the PID Unit.

PID training

PID training provides an overview of your public authority’s responsibilities under the Public Interest Disclosures Act 1994 and the roles and responsibilities of parties involved in disclosures. We can tailor training content to meet your agency’s training needs.

The NSW Ombudsman offers free training on issues relating to public interest disclosures:

Our training sessions help public authorities to promote awareness of the importance of public interest disclosures, promote a positive reporting environment and manage public interest disclosures effectively.

Contact our Community Education and Training Unit to enquire about securing PID training in your organisation for groups of 10 or more on 02 9286 0900.

IBAC podcasts

The Independent Broad-based Anti-Corruption Commission in Victoria has a range of interesting podcasts featuring experts discussing topics such as whistleblowing, organised crime and public sector corruption.

Two podcasts relevant to PID Practitioners are listed here:

Practical perspectives on building corruption resilient culture

In this podcast IBAC chats with Fran Thorn who leads the public sector and healthcare practice at Deloitte.

Ms Thorn, as a former Departmental Secretary, is a public policy expert and is recognised as a leader in the design and delivery of large scale service systems in Government. In this podcast Fran reflects on her experiences and responsibilities as a public sector leader, and the importance of public sector agencies having robust integrity systems.

Encouraging public sector whistleblowing

In this podcast IBAC chats with Dr Suelette Dreyfus, Lecturer in the Department of Computing and Information Systems at The University of Melbourne.

Dr Dreyfus is a technology researcher, journalist, and writer, and her fields of research include the impact of technology on whistleblowing. IBAC discusses the importance of blowing the whistle on corruption and how leaders can encourage people in the public sector to speak up.

Public Interest Disclosures

As always, your feedback and suggestions for future issues are welcome. Email: pid@ombo.nsw.gov.au or call 02 9286 1000.

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