From 1 October 2023, significant changes to the Public Interest Disclosure (PID) regime in NSW come into effect.
The Public Interest Disclosures Act 2022 (NSW) (PID Act) completely replaces the Public Interest Disclosures Act 1994 (NSW) (1994 Act), creating significant changes aimed at enhancing protections for disclosers, streamlining reporting processes, and strengthening the framework for investigating disclosures of wrongdoing within NSW government agencies.
Here is what’s new:
Public Interest Disclosure Policies: While agencies were required to have a under the 1994 Act, the requirements for these policies under the PID Act are more detailed and prescriptive than previously.
Agency PID policies must now detail (amongst other things) the procedures for receiving, acknowledging, and responding to disclosures. The PID Policy must also identify nominated disclosure officers and their contact details. The content of a PID policy is prescribed by section 43 of the PID Act 2022.
While many agencies will likely amend their existing PID policy, the Ombudsman has helpfully prepared a model PID policy: available here.
Categories of Public Interest Disclosures: The PID Act sorts public interest disclosures into three categories:
Mandatory Public Interest Disclosures: these are disclosures about serious wrongdoing by a public official either in the course of their duties or under a legal obligation.
Witness Public Interest Disclosures: these disclosures involve providing information during an investigation of serious wrongdoing, whether related to a voluntary disclosure or not.
Voluntary Public Interest Disclosures: these disclosures are made voluntarily and must show or tend to show serious wrongdoing. Voluntary disclosures can be made anonymously.
Serious Wrongdoing is defined in the PID Act to include behaviour such as corrupt conduct, government information contraventions, serious maladministration, privacy contraventions, and substantial waste of public money. This definition is broader than that contained in the 1994 Act.
Who Can Make a PID: The categories of individuals who can make PIDs have been expanded. It includes not only employees but also those providing services or exercising functions on behalf of an agency, such as contractors, subcontractors, and volunteers.
Recipients of Disclosures: Under the PID Act, there is no “wrong” recipient for a disclosure. All public interest disclosures are made in the same manner. Recipients include the head of an agency, disclosure officers, managers, members of Parliament, and journalists. However, certain conditions must be met for disclosures to members of Parliament or journalists to be protected.
Protections for Disclosers: It is an offence to take detrimental action against a person who has made a disclosure if the disclosure was a contributing factor to the action. This threshold is lower than that of the PID Act 1994, which required that the action be “substantially in reprisal” for the disclosure.
Our 3 WISE tips
- Agencies should ensure that their existing PID Policy is amended to meet the new requirements. While many agencies will have drafts in place ahead of 1 October 2023, it is also important to ensure that disclosure officers and others central to the operation of the PID Act are trained on the changes, in addition to staff more generally.
- When considering the expanded definition of who can lawfully make a protected disclosure, agencies should consider those entities it contracts with to carry out services or functions on behalf of the agency and ensure they are advised of the changes to the PID Policy.
- Finally, it is best practice to conduct an audit of your agency’s PID functions from time to time. This is the perfect time to do so to ensure your agency is implementing and maintaining procedures with respect to:
- dealing with disclosures that are or may be voluntary PIDs;
- providing information to the makers of voluntary PIDs;
- assess and minimise the risk of detrimental action;
- dealing with allegations that a detrimental action offence has been committed;
- maintaining confidentiality and protecting the identity of the makers of voluntary PIDs;
- taking appropriate corrective action in response to findings of serious wrongdoing or other misconduct;
- record-keeping and reporting; and
- establishing internal oversight of your agency’s compliance.