Corruption Matters - December 2015 | Issue 46
The PID Act reaches its 20-year milestone
Twenty years ago, NSW was one of the first jurisdictions in the world to enact legislation dealing specifically with the protection of public officials who report serious wrongdoing. This anniversary presents an opportunity to take stock; to look back at the last 20 years and to reflect on what has changed to help pave the way for future reform.
The first whistleblower protection legislation in NSW was one of the most significant initiatives to flow from the charter of reform signed between the government of the day and three independent members of Parliament. The then-called Protected Disclosures Act 1994 commenced operation on 1 March 1995. Its aims were – and remain – to encourage and facilitate the disclosure, in the public interest, of serious wrongdoing in the public sector.
From a somewhat reluctant beginning, various legislative reviews have seen the protections available to public officials who report on serious wrongdoing progressively strengthened, reflecting a change in government commitment to encouraging those “in the know” to speak up when they believe something is wrong.
These amendments have included:
- moving from the initial focus on disclosures being dealt with by investigating authorities to requiring public authorities themselves to develop and implement a policy and procedures for receiving, assessing and dealing with public interest disclosures
- changing the name of the legislation from how it is to achieve its objective (that is, by providing protection) to its actual objective (that is, the making of disclosures in the public interest)
- expanding the definition of who can report to specifically include contractors and volunteers
- providing a wider range of legal protections for those reporters who experience reprisals, such as the right to seek an injunction to prevent detrimental action from occurring and to sue for damages for any loss suffered
- giving the NSW Ombudsman a statutory role in promoting the legislation, providing advice and overseeing its implementation.
Despite this, the public sector landscape does not stand still and the legislative framework needs to continue to evolve to deal with new challenges. The “cluster” structure of state government raises questions about what constitutes a public authority and a principal officer; the consequence being that staff may unintentionally miss out on the protections of the Public Interest Disclosures Act 1994 (“the PID Act”) if they make a disclosure to the wrong agency or person. The PID Act also does not contemplate disclosures being made to hotlines (including via telephone, email or an online form), which is the current preference of many reporters.
Legislation alone is not enough. It is the practical protection of people who make disclosures that is the foundation on which the success of the PID Act relies. A survey conducted by the NSW ICAC in 1994 found that nearly 75% of NSW public servants feared that they would suffer if they reported corrupt conduct. It concluded that safe and effective reporting mechanisms would be of little use if people did not believe there was any point in using them. Further research released by the ICAC a few years later revealed a “lacklustre response” and “less than satisfactory” implementation of the legislation amongst both state and local government agencies.
Fortunately, the reporting culture in the NSW public sector has also radically changed over the past 20 years. In 2014, 65% of respondents to the Public Service Commission’s People Matter Employee Survey of state government staff said that they were confident they would be protected from reprisal for reporting misconduct/wrongdoing. This statement showed one of the largest improvements from the 2012 responses (up 7% from 58%).
Further, we can now quantify the extent to which the PID Act is being applied. Over the three-and-a-half years since the start of 2012, public authorities in NSW reported receiving 1,295 public interest disclosures. The work of the office of the NSW Ombudsman in auditing public authorities suggests that this is, in fact, a significant underestimate of the number of reports of serious wrongdoing being made internally within public authorities. It is clear that today’s public officials do believe there is a point in reporting matters of public interest.
Through our oversight role, we have seen that the overall commitment to good internal reporting frameworks and practices is apparent across most NSW public sector agencies. Rather than being seen as disloyal, reporters are welcomed. The ongoing challenge is to continue to reinforce a culture where staff understand that reporting what they observe to be wrong is an obligation – not just an option – and simply an everyday, ordinary part of their duty as public officials.