Corruption Matters - June 2016 - Issue 47

Focus on reprisals: conflict, risk assessment and support

by Deputy Ombudsman Chris Wheeler   

Last year, the NSW Ombudsman’s office conducted an audit of the handling of allegations of detrimental action across the NSW public sector. We wrote to the CEOs of all major public authorities and received 225 responses. Of these, only 16 public authorities said that they had received allegations of detrimental action in reprisal for making a public interest disclosure (PID). These numbers are much lower than we had anticipated. Below are observations from the audit.


Workplace conflict as a factor in the making of allegations of reprisal

In 79% of the cases reviewed, there was already a history of conflict in the workplace prior to the making of the PID and allegations of detrimental action. The conflicts involved either the reporter and the subject officer or the reporter and management. In a number of cases, performance management action had been taken against the reporter prior to the PID being made and in two cases there were pre-existing workers compensation claims.

This means that unpicking the PID from the pre-existing conflict that exists is difficult and in most cases impossible. This may be the reason that, to date, it has not been possible to establish in a court that the reprisal provisions in the Public Interest Disclosures Act 1994 have been contravened.

For this reason, in our view, organisational responses, such as investigations that seek to establish whether detrimental action has occurred, are rarely a useful response. Public authorities should instead stop the action from occurring and then try and identify the cause of the conflict and resolve it.

We also noted that pre-existing conflict is a key or substantial risk factor in the making of allegations of reprisal. This means that such conflict can act as a red flag to people receiving reports of wrongdoing that a detailed risk assessment needs to be completed. 

The role of assessment and risk assessment

Of the matters that we reviewed as a result of the audit, only two public authorities completed a risk assessment following the receipt of the PID. In our ongoing audit work we have identified that risk assessment is an area with which most public authorities need further assistance and guidance. The NSW Ombudsman’s office has published guidance on risk assessment and a draft risk assessment template, which is available on our website.


In the majority of cases no formal support was provided to the reporter after making their PID. In three cases, the reporter was provided with support but only after they made allegations that they had suffered reprisals. In our view, the provision of support is a critical factor in preventing allegations of detrimental action being made and public authorities need to consider providing more support to reporters who are identified as being at risk of detrimental action.

The report is in the final stages of drafting and the Acting NSW Ombudsman is presently considering whether to make this a report to the NSW Parliament.

For further details on the audit and its findings, contact Maya Borthwick, Senior Investigation Officer, NSW Ombudsman’s office, on 02 9286 1000 or 1800 451 524. 

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