Protections for those who make public interest disclosures
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 2022 ("the PID Act"), which offers legal protection
from detrimental action. Protection only applies if the disclosure is made
through the channels described below.
The PID Act provides protection against detrimental action that may be taken against
public officials or others who make public interest disclosures,
including:
- injury, damage or loss to the person
- damage caused to the person’s property
- damage caused to the person’s reputation
- intimidation, bullying or harassment
- unfavourable treatment in relation to the person’s career, profession, employment or trade
- discrimination, prejudice or adverse treatment, whether in relation to employment or otherwise
- disciplinary proceedings or disciplinary action.
Detrimental action is an offence under the PID Act and persons who act in detriment against public officials or certain others 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 honestly, and on reasonable grounds, believe the disclosure shows or tends to show serious wrongdoing, such as:
o corrupt conduct
o a government information contravention (that is, a failure, other than a trivial failure, by an agency or public official to exercise functions in accordance with the Government Information (Information Commissioner) Act 2009, or the Government Information (Public Access) Act 2009, or the State Records Act 1998)
o a local government pecuniary interest contravention (that is, a contravention of an obligation imposed in connection with a pecuniary interest by the Local Government Act 1993 or a code of conduct adopted by a council under that Act)
o serious maladministration (that is, conduct, other than conduct of a trivial nature, of an agency or a public official relating to a matter of administration that is unlawful, or unreasonable, unjust, oppressive or improperly discriminatory, or based wholly or partly on improper motives)
o a privacy contravention (that is, a failure, other than a trivial failure, by an agency or public official to exercise functions in accordance with the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002) and/or
o a serious and substantial waste of public money
- it concerns only a grievance about a matter relating to the employment or former employment of an individual, and either does not have significant implications beyond matters personally affecting or tending to personally affect the individual, or relates to a disagreement with the taking or proposed taking of reasonable management action
- relates only to a disagreement with a government policy.
If unsure whether the matter involves serious wrongdoing or where to report it, contact the ICAC in the first instance on 02 8281 5999 or free call 1800 463 909 (callers outside Sydney).
Before making a public interest disclosure, the person making the disclosure should:
- review the agency's policy on making a public interest disclosure
- consider contacting the NSW Ombudsman or a lawyer for independent legal advice
- keep the details of the disclosure confidential, except for the NSW Ombudsman or
any legal representation.
Once the disclosure has been made, a log should be maintained of any
detrimental action against the make of the disclosure due to having made 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
Contact:
- the head of the agency, or
- another disclosure officer for the agency, or
- the ICAC (concerning corrupt conduct), or
- the NSW Ombudsman (concerning serious maladministration), or
- the NSW Auditor-General (concerning a serious and substantial waste of
public money) or
- the Office of Local Government (concerning a local government pecuniary interest contravention)
- 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 voluntary public interest disclosure to a member of Parliament or journalist is only
provided if all the following apply:
- the disclosure is substantially true, and
- the maker of the disclosure is a public official who is not a member of Parliament and has previously made the same voluntary public interest disclosure (the previous disclosure) to the head of the agency, another disclosure officer for an agency, a manager of the person making the disclosure, or a written disclosure to a Minister or a member of a Minister's staff, and
- the previous disclosure was not anonymous, and
- the maker of the previous disclosure did not waive, in writing, the right to receive information under s 59 of the PID Act in relation to the previous disclosure, and
- either:
- the maker of the previous disclosure has not, at the end of the investigation period (the period of six months from the making of the previous disclosure), received from an agency the required information in relation to the previous disclosure, or
- the maker of the previous disclosure has been notified by an agency, at any time, that the agency has made a decision mentioned in section 55(3) of the PID Act in relation to the previous disclosure (that is, a decision neither to investigate the relevant serious wrongdoing nor to refer the disclosure, or a decision to cease investigating the relevant serious wrongdoing without either completing the investigation or referring the disclosure).
Confidentiality
Confidentiality is one of the main protections available under the PID Act.
The agency concerned is required not to disclose information tending to identify a person as the maker of a voluntary public interest disclosure except in certain circumstances. The fewer people who know about
a public interest disclosure, the less likelihood there is of detrimental action.
The identity of a person who makes a voluntary public interest disclosure will not be disclosed unless:
- consent is given in writing, or
- it is generally known the person is the maker of the voluntary public interest disclosure as a result of the person’s voluntary self-identification as the maker, or
- after consulting the person, it is reasonably considered necessary to disclose the identifying information to protect a person from detriment, or
- it is necessary the identifying information be disclosed to a person whose interests are affected by the disclosure, or
- the identifying information has previously been lawfully published, or
- the identifying information is disclosed to a medical practitioner or psychologist for the purposes of the practitioner or psychologist providing medical or psychiatric care, treatment or counselling to the individual disclosing the information, or
- the identifying information is disclosed for the purposes of proceedings before a court or tribunal, or
- the disclosure of the identifying information is necessary to deal with the disclosure effectively, or
- it is otherwise in the public interest to disclose the identifying information.
Documents relating to a public interest disclosure cannot be released under a
Government Information (Public Access) Act 2009 request.
Protection against legal liability
The maker of a public interest disclosure does not incur civil liability, including liability for breaching a duty of secrecy or confidentiality or another restriction on disclosure applicable to the person or incur criminal liability, including liability for breaching a law or code of conduct imposing a duty of confidentiality or other restriction in relation to the disclosure of information and is not liable to disciplinary action. The maker of the disclosure may also have, in relation to the making of the disclosure, a defence of absolute privilege under the Defamation Act 2005 in proceedings for defamation.
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 the maker of a disclosure 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 cannot be obtained. Also, it may be more difficult to
establish any protections available under the PID Act.
If the ICAC determines that the matter raised should be treated as a voluntary public
interest disclosure, the PID Act generally requires the ICAC to update the person making the disclosure within three 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.