The Public Interest Disclosures Act 2022 (NSW) (PID Act 2022) commenced on 1 October 2023, replacing the Public Interest Disclosures Act 1994 (NSW)(PID Act 1994). The PID Act 2022 introduces significant reforms to how public interest disclosures are made, received and handled. It also provides greater protection for people who make public interest disclosures compared to the provisions in the PID Act 1994.
The PID Act 2002 applies to, and imposes several obligations on, NSW public sector agencies, including onerous training and awareness responsibilities on all managers and employees. It also strengthens criminal penalties and civil liabilities for individuals and agencies.
Agencies under the PID Act 2022
Under section 16 of the PID Act 2022, an 'agency' includes the following individuals or bodies:
- a public service agency (as defined in the Government Sector Employment Act 2013 (NSW))
- a statutory body representing the Crown
- an integrity agency, such as the Ombudsman, Independent Commission Against Corruption, the Auditor-General, the Privacy Commissioner and the Information Commissioner
- a state owned corporation
- a local government authority
- a Local Aboriginal Land Council.
What is a public interest disclosure?
Under section 21 of the PID Act 2022, public interest disclosures are separated into three categories:
- mandatory public interest disclosures – these are disclosures about serious wrongdoing by a public official, either while meeting the ordinary requirements of the official's particular role or functions, or under a statutory or other legal obligation
- witness public interest disclosures –
these are disclosures of information in an investigation of serious
wrongdoing, or at the request of or in response to a requirement of
a person or agency investigating the serious wrongdoing, whether
- relates to or arises from a voluntary public interest disclosure, or
- constitutes dealing with a voluntary public interest disclosure.
- voluntary public interest disclosures – these disclosures are most comparable to public interest disclosures under the PID Act 1994. They comply with the requirements of the PID Act 2022 but are not witness or mandatory public interest disclosures or are made orally to a minister or a minister's staff.
A disclosure qualifies as a voluntary public interest disclosure if the maker of the disclosure honestly and on reasonable grounds believes that the disclosure shows or tends to show serious wrongdoing. Employment grievances which do not have significant implications beyond matters personally affecting an individual or disagreements as to reasonable management actions are not voluntary public interest disclosures (see section 26(3) of the PID Act 2022).
Section 29 of the PID Act 2022 enables the head of an agency to determine that a disclosure made by a person is a voluntary public interest disclosure, even if the disclosure is not.
The administrative requirements for receiving and dealing with voluntary public interest disclosures are set out at Part 5 of the PID Act 2022.
What is serious wrongdoing?
Each of the three categories of public interest disclosure provides protection to the maker of the disclosure where the disclosure is about 'serious wrongdoing' by a public official. This term is broadly defined in section 13 of the PID Act 2022 and includes, among other things:
- corrupt conduct
- serious maladministration
- a privacy contravention
- a serious and substantial waste of money.
A disclosure is about serious wrongdoing if the disclosure includes an allegation of the serious wrongdoing or shows or tends to show the serious wrongdoing.
Whilst the PID Act 2022 refers to serious wrongdoing, the threshold seriousness set by a number of the categories of wrongdoing is lower than that specified under the PID Act 1994. For example, serious maladministration refers to conduct "other than conduct of a trivial nature". In contrast, the PID Act 1994 defined maladministration as only being relevant "action or inaction of a serious nature."
A disclosure will not be a public interest disclosure to the extent that the maker of the disclosure wilfully makes a false statement or misleads or attempts to mislead the agency or person to whom the disclosure is made.
Makers of public interest disclosures
Whether a person is a 'public official' is a central concept under the PID Act 2022 as any reported instance of 'wrongdoing' must be made by a 'public official'.
The PID Act 2022 also significantly expands the categories of individuals who can make a public interest disclosure. In addition to individuals employed by an agency, those providing services or exercising functions on behalf of an agency, including contractors, subcontractors or volunteers can make a public interest disclosure.
Local councils, state government departments and all public service agencies included in the Government Sector Employment Act 2013 (NSW) are agencies under the PID Act 2022 and accordingly, any employees, contractors, subcontractors and volunteers of those agencies will be public officials.
Recipients of public interest disclosures
Under the PID Act 1994, a disclosure that was not made to the appropriate investigating authority or public authority was generally not regarded as a public interest disclosure and therefore the person who made the disclosure was not protected under the PID Act 1994. The only exception was where the public official who made the misdirected disclosure honestly believed it was the appropriate investigating authority to deal with the disclosure.
However, under the PID Act 2022, a person will not be disadvantaged by making a disclosure to the 'wrong' person – as rather than there being separate pathways for making a public interest disclosure, all public interest disclosures will be made in the same manner.
Under the PID Act 1994, a public authority was only required to designate at least one officer as being responsible for receiving public interest disclosures. The PID Act 2022 widens the number of recipients of voluntary public interest disclosures to include:
- the head of an agency
- another disclosure officer for an agency
- a manager of the person making the disclosure.
The PID Act 2022 imposes a mandatory obligation on managers who receive a public interest disclosure, to communicate, as soon as practicable, the disclosure to a disclosure officer for an agency with which either the manager or the public official who made the disclosure is associated. The term 'manager' is broadly defined in section 15 of the PID Act 2022.
A voluntary public interest disclosure may also be made to a member of Parliament or a journalist (see section 27(1)(e) of the PID Act 2022). Such a disclosure will only be protected if made in limited circumstances, i.e., where the disclosure is substantially true, the same disclosure has already been made to a person within the agency, and the agency has decided neither to investigate nor refer the disclosure or has ceased to investigate the disclosure.
Protections for makers of public interest disclosures
Part 3 of the PID Act 2022 protects individuals who make a public interest disclosure by making it an offence to take detrimental action against those people where their disclosure is "a contributing factor" to those actions. This is a lower threshold than under the PID Act 1994, where it was only an offence to take detrimental action against the maker of a disclosure that was "substantially in reprisal" for the disclosure.
Other protections under the PID Act 2022 include:
- the right to seek compensation for injury, damage or loss suffered as a result of detrimental action being taken against them
- the ability to seek an injunction to prevent, stop or remedy a detrimental action offence.
Key obligations for agencies
The PID Act 2022 creates several obligations for agencies, including:
- public interest disclosure policy – all agencies must have such policies
- training and awareness – agencies must provide appropriate training to disclosure officers for the agency, which includes the head of agency and managers of public officials associated with the agency
- reducing the risk of detrimental action – agencies must take steps to assess and minimise the risk of detrimental action being taken against a person as a result of making a voluntary public interest disclosure
- reporting – agencies need to report data about the voluntary public interest disclosures they have received every year (in an annual return) to the NSW Ombudsman. Agencies must also notify the NSW Ombudsman when certain events happen, such as when they receive an allegation of detrimental action or when they decide not to investigate or cease investigating a public interest disclosure
- contracts and subcontracts – all contracts and
subcontracts under which a person or body is engaged to provide
services on behalf of an agency must include a series of terms
requiring the engaged person or body to, amongst other things:
- ensure all individuals involved in providing services under the contract are made aware they are 'public officials' under the PID Act 2022, how to make a voluntary public interest disclosure, the contracting agency's public interest disclosure policy, etc
- notify the contracting agency of any voluntary public interest disclosures they become aware of and any serious wrongdoing committed or alleged to be committed by an individual providing services under the contract.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.