Protections available under the Protected Disclosure Act

The Protected Disclosures Act 1994 provides certain protection for public officials who make a protected disclosure, even if they do so anonymously. However, you should be aware that if your disclosure is made anonymously it may be difficult to establish your entitlement to protection.

Please note: a disclosure is not protected if:

• it does not show, or tend to show, corrupt conduct, maladministration or serious and substantial waste
• it is frivolous or vexatious
• is made solely or substantially to avoid disciplinary action
• it primarily questions the merits of government policy
• it is not voluntary.  

Confidentiality 
Protection against detrimental action 
Protection against legal liability

Confidentiality

Confidentiality is one of the main protections available under the Protected Disclosures Act. Your agency is required to keep your identity confidential except in certain circumstances. The fewer people who know that you have made a protected disclosure, the less likelihood of reprisals for making the disclosure.

Your identity will not be disclosed unless:

• you consent in writing to the release of your name; or
• it is essential to disclose your identity to the person the information concerns because of the requirements of procedural fairness; or
• it is necessary for effective investigation of the matter; or
• release of the information is necessary in the public interest.

Documents relating to a protected disclosure cannot be released under a Freedom of Information Act request.

Protection against detrimental action 

The Protected Disclosures Act provides protection against reprisals taken against public officials who make protected disclosures, including:

• injury, damage or loss
• intimidation or harassment
• discrimination, disadvantage or adverse treatment in relation to employment
• dismissal from or prejudice in employment disciplinary proceedings.

Reprisals are an offence under the Protected Disclosures Act and persons who act in reprisal against public officials making protected disclosures can be prosecuted. If convicted, a person may be fined and/or imprisoned.

Protection against legal liability

Under the Protected Disclosures Act, a person is not subject to any legal liability for making a protected disclosure. The Act provides legal protection against defamation procedures that may be brought against a person making a disclosure that may damage a reputation. The Act also protects the person making the disclosure from criminal and disciplinary action for a breach of confidentiality.

If you are considering making a protected disclosure, or have already made one, it is important to ensure that you do not lose the protections available under the Act. Some things you can do to retain the protection of the Act include:

• Be aware of whether your agency has an internal reporting system.
• Familiarise yourself with your agency’s policy on making a protected disclosure.
• Report suspected corrupt conduct, maladministration or serious and substantial waste to the head of your organisation, the nominated Protected Disclosure Coordinator/s or externally to the ICAC, the NSW Ombudsman or the Audit Office of NSW.
• Consider contacting the NSW Ombudsman or a lawyer to obtain independent advice about the provisions of the Act.
• Do not disclose the details of your protected disclosure to anyone apart from the person to whom you are making the protected disclosure, and the Ombudsman or lawyer you may choose to consult. Disclosing details of the matter to others will make it difficult to prove that any detrimental action taken against you is a result of having made a protected disclosure, and not a result of having discussed the information with others.
• If you believe detrimental action is being taken against you for making a protected disclosure, consider keeping records of dates that events occur, details of conversations and, when permissible, copies of relevant documents.