Protections for public officials
Many individuals are discouraged from reporting suspected conduct for fear of retaliation.
NSW public officials can report suspected corruption under the Public Interest Disclosures Act 1994 (the PID Act) which offers legal protection from workplace reprisals. Protection only applies if the disclosure is made through the channels described below.
The PID Act provides protection against reprisals that may be taken against public officials or certain contractors who make public interest 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 PID Act and persons who act in reprisal against public officials or certain contractors making public interest disclosures can be prosecuted. If convicted, a person may be fined and/or imprisoned.
Please note that a disclosure is not protected if:
- the maker does not hold an honest belief that it shows, or tends to show, corrupt conduct, maladministration, serious and substantial waste, government information contravention or a pecuniary interest breach
- is made solely or substantially to avoid disciplinary action
- primarily questions the merits of government policy
- is not voluntary.
Prior to making a public interest disclosure, confirm that the matter falls within the ICAC's jurisdiction or call the ICAC to check on 02 8281 5999 or freecall 1800 463 909 (callers outside Sydney).
Before making a public interest disclosure, public officials should:
- review the agency's policy on making a public interest disclosure
- consider contacting the NSW Ombudsman or a lawyer for independent advice‚
- keep the details of the disclosure confidential, except for the Ombudsman or any legal representation.
Once the disclosure has been made a log should be maintained of any detrimental action against the public official due to the complaint, including dates, conversation details and copies of relevant documents.
The online corruption report form can be used to submit a public interest disclosure to the ICAC.
To make a public interest disclosure about an agency
- the head of the agency, or
- the agency's public interest disclosures coordinator, or
- the ICAC (concerning corrupt conduct), or
- the NSW Ombudsman (concerning maladministration), or
- the NSW Auditor General (concerning a serious and substantial waste of public money) or
- the Department of Local Government (concerning serious and substantial waste in local government or breaches of pecuniary interest obligations)
- the Information Commissioner (concerning government information contraventions)
To make a public interest disclosure to a Member of Parliament or journalist
Legal protection when making a disclosure to an MP or journalist is only provided if all the following apply:
- the disclosure has been made through one of channels detailed above
- the agency or officer to whom the disclosure was made has undertaken one or more of the following:
- decided not to investigate
- failed to complete the investigation within six months of the disclosure
- the matter was investigated but not recommended for any further action
- failed to notify the public official within six months of the disclosure about whether the matter will be investigated
- there are reasonable grounds for believing the disclosure is true
- the disclosure is substantially true.
Confidentiality is one of the main protections available under the PID Act. The agency concerned is required to keep the identity of the claimant confidential except in certain circumstances. The fewer people who know about a protected disclosure, the less likelihood there is of reprisals.
The identity of a public official will not be disclosed unless:
- consent is given in writing; or
- it is necessary to disclose the identity to the person the information concerns because of the requirements of procedural fairness; or
- it is essential to effectively investigate the matter; or
- the release of the information is necessary and in the public interest.
Documents relating to a protected disclosure cannot be released under a Government Information (Public Access) Act 2009 request.
Protection against legal liability
Under the PID Act, a person is not subject to any legal liability for making a public interest 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.
How the ICAC deals with public interest disclosures
Once a matter is reported, the ICAC considers whether the PID Act applies to the information. The ICAC may seek further details to assist this consideration.
If a public official provides their name and contact details, the ICAC will confirm in writing that the information has been received. If they have not already given consent for their identity to be disclosed to another agency, they will be asked to indicate in writing whether or not consent is given to being identified. Generally, identities will be kept confidential even if consent is given to being identified, unless the ICAC has to release names for the matter to be properly examined.
Information can be provided anonymously, but it is much more useful if contact details are provided. It is sometimes difficult for the ICAC to pursue a matter if further details can't be obtained. Also, it may be more difficult to establish any protections available under the Act.
If the ICAC determines that the matter raised should be treated as a public interest disclosure, the Act requires the ICAC to advise the claimant within six months about the intended action. The ICAC may decide to take direct action on the information provided or may decide, in appropriate circumstances, to refer it to another agency.