Corruption Matters - October 2022 | Issue 60
What every public sector manager needs to know about the new public interest disclosure legislation
The new Public Interest Disclosures Act 2022 (“the PID Act 2022”) will come into effect late next year. Until then, the 1994 Act is still in effect.
The NSW Ombudsman is the lead oversight agency for whistleblowing, and will be preparing – and helping agencies to prepare – over the next 12 months for the implementation of the PID Act 2022. This includes ensuring that public officials and agencies are informed of the changes that are coming, and what they need to do to be ready. The Ombudsman is developing new guidance as well as training packages to assist those who might make a PID, as well as those who may receive or have to deal with a PID.
One of the most significant changes in the new PID Act 2022 will be that public officials will be able to make a PID directly to their manager. This is different from the current PID Act 1994, where a PID within an agency can only be made to particular staff members who have been designated as “disclosure officers” under the agency’s PID policy.
When the new legislation comes into force next year, every manager in the public sector will effectively become a potential PID receiver.
This is a key reform that aims to “normalise” whistleblowing within agencies, and to ensure that those who see wrongdoing are protected when they report it. Research shows that managers are often the first and natural point of contact for many public officials seeking to report wrongdoing.
Who is a manager for the purposes of the PID Act 2022?
For most public officials, their manager will be easy to identify.
The PID Act 2022 defines manager for most public officials to be the person to whom they report directly or indirectly, or who supervises them directly or indirectly. A person can have more than one “manager” under this definition.
For ministerial staff or those working in other political offices (under the Members of Parliament Staff Act 2013), the new Act provides that their manager will be the chief of staff of their office (that is, not the minister or other political office holder).
The Act applies a different meaning of “manager” where services or functions are being provided by a contractor or volunteer.
For individual contractors, subcontractors or volunteers providing services or exercising functions on behalf of an agency, their manager is taken to be the public official in that agency who oversees those services or functions, or who manages the relevant contract or volunteering arrangement.
For staff of entities that contract to provide services or exercise functions on behalf of an agency, likewise their manager is taken to be the public official in that agency who oversees those services or functions, or who manages the relevant contract.
What are the responsibilities of managers who receive a PID under the new Act?
If a manager receives a PID, their immediate job is to communicate that disclosure to a “disclosure officer” of the relevant agency. Managers can find out who their agency’s “disclosure officers” are from the agency’s PID policy.
Managers obviously also have a responsibility to help support their staff member who has made the report, including by keeping the report and the identity of the staff member confidential except when reporting it up to the disclosure officer.
The Act requires managers to do this “as soon as reasonably practicable”. The manager does not have a responsibility to investigate the disclosure, only to ensure it is appropriately communicated to the right place.
Importantly, this means that all managers will need to have at least a working knowledge of what a PID is – so they can recognise one when they receive it. This may not always be immediately obvious: PIDs can be oral or in writing, and the person making a PID does not have to say they are making a “public interest disclosure” or use any other special form of words.
Don’t worry – help is on the way to support managers prepare for this change
There’s no need for managers to worry.
Under the PID Act 2022, agencies must ensure that managers receive training about their obligations and about the agency’s PID policy. The PID policy must specify the responsibilities of managers under the Act.
Over the next 12 months, the Ombudsman will be supporting agencies with information, training and support to help managers across the public sector get to grips with their responsibilities under the new Act.
Learn more about the new public interest disclosure legislation at APSACC 2022Public Interest Disclosures Act 2022 – “Get ready” APSACC training workshops The new Public Interest Disclosures Act 2022 will be featured at the upcoming Australian Public Sector Anti-Corruption Conference (APSACC) being held in Sydney in November 2022. The NSW Ombudsman, Paul Miller PSM, will be speaking about the significant enhancements to whistleblower protections in NSW on 16 November. In addition, the NSW Ombudsman’s office will be running workshops on Preparing your agency for the New PID Act 2022 on the following dates:
You can register to attend APSACC at www.apsacc.com.au. To keep abreast of the PID changes and of the NSW Ombudsman’s PID team upcoming events, subscribe to our mailing list by clicking on the following link or QR Code: Subscribe to the public interest disclosures newsletter - NSW Ombudsman
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